South Carolina Tax Litigation Update: First Quarter 2018

by McNair Law Firm, P.A.
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There were several notable state tax opinions issued by the South Carolina Administrative Law Court, Court of Appeals, and Supreme Court in the 1st quarter of 2018.  A number of tax cases are also pending before the Court of Appeals and Supreme Court.  Administrative Law Court property tax opinions are not addressed in this update.

South Carolina Administrative Law Court Decisions

  • Home Depot U.S.A., Inc., d/b/a/ The Home Depot v. South Carolina Department of Revenue, Docket No. 15-ALJ-17-0253-CC (March 12, 2018).

DOR assessed additional sales tax after concluding Home Depot improperly remitted use tax based upon its cost for materials used in its install contracts rather than remitting sales tax based on the retail selling price of the materials used in its install contracts.  Home Depot would charge customers the retail sales price for materials used in install contracts, but remitted use tax based on its cost of the materials instead of collecting sales tax on the retail sales price.  Home Depot argued it was a contractor when it sold install contracts to customers and properly remitted use tax based on its cost of materials.  DOR argued Home Depot was acting as a retailer and should have collected sales tax on the retail sales price of the materials.  The case was heard before Chief Administrative Law Judge Ralph King Anderson, III.  Judge Anderson’s opinion found Home Depot was acting as a retailer and should have collected sales tax on the retail sales price of materials, not Home Depot’s wholesale cost.  A notice of appeal was filed on April 10, 2018.

Observations:  Taxpayers who operate as both a contractor and a retailer should carefully review this opinion and its potential impact.  Taxpayers should consider restructuring their activities to segregate their retail and contractor operations, or at least separately account for these activities, to avoid DOR arguments that the contractor operations should be taxed as a retail business.

  • Dollar Tree Stores, Inc. v. South Carolina Department of Revenue, Docket No. 17-ALJ-17-0414-CC (February 6, 2018)

DOR issued a proposed assessment of about $2,700,000 to Dollar Tree.  Dollar Tree failed to protest the proposed assessment within the applicable 90 day protest period and DOR then assessed the liability.  Dollar Tree filed a contested case hearing request with the South Carolina Administrative Law Court approximately five months after the proposed assessment was issued, asking the ALC to remove the assessment and remand the matter to SCDOR.  The ALC can remove an assessment for good cause and remand the matter to DOR.  Dollar Tree argued the proposed assessment was issued to a junior, inexperienced employee who graduated college in 2016.  The ALC determined good cause was not present, noting subsequent interactions with the Department and Dollar Tree’s designation of the employee as the point of contact.  The ALC observed that Dollar Tree could pay the assessment, file a refund claim, and then request a hearing before the ALC if the refund claim was denied.

Observations:  The ALC has issued a number of opinions which show that “good cause” for missing the 90 day protest period is a high standard that may be difficult to meet.  In most instances, if the 90-day protest period is missed, the only remedy may be to pay the tax at issue and file a refund claim.    For a refund claim to be filed, and where multiple tax periods are involved in a DOR audit, DOR may argue that the taxes (and all penalties and interest) must be first paid for each and every tax period in an audit; however, the administrative position of DOR in this regard may not be correct and a taxpayer should be able to pay taxes (and any penalties and interest) for any one tax period and file a claim for refund.  Each tax period should be a separate cause of action for refund purposes.

  • Beltram v. South Carolina Department of Revenue, Docket No. 13-ALJ-17-0244-CC (January 12, 2018)

This is a responsible party case that is on appeal to the Court of Appeals.  The taxpayer appealed a decision of the ALC but failed to pay the tax determined to be due in the ALC’s decision.  The Court of Appeals remanded the matter to the ALC to determine the amount of taxes the taxpayer was required to pay.  The taxpayer argued it was the amount shown on filed tax liens and that interest should not be included.  The ALC determined the full tax liability for the periods at issue, and interest, had to be paid.

Observations:  Briefs have now been filed with the Court of Appeals and DOR is arguing the taxpayer’s appeal should be dismissed in any event because the statute allowing taxpayers to appeal a decision of the ALC requires the tax to be paid before an appeal is filed.  A taxpayer challenging a liability before the ALC should be prepared to pay the taxes at issue if it contemplates appealing an adverse decision by the ALC.  A Notice of Appeal must be filed within 30 days of the date an ALC order is entered.  The Court of Appeals may allow the appeal in Beltram to proceed because of unique facts in the case, but taxpayers should assume their appeal from an ALC decision will be dismissed if they do not pay the taxes at issue before filing a Notice of Appeal.

Court of Appeals Decisions

  • Hock RH, LLC v. South Carolina Department of Revenue, Appellate Case No. 2015-002087 (March 28, 2018)

York Preparatory Academy (YPA) and Hock RH, LLC appealed an order of the Administrative Law Court affirming the South Carolina Department of Revenue’s (DOR’s) denial of a property tax exemption request and refund of 2013 property taxes.  YPA, a public charter school, leased property Hock RH, LLC.  Public charter schools are generally exempt from state and local taxes, including property taxes.  In 2013 a property tax exemption request was filed with DOR.  DOR denied the request because there is no property tax exemption for property leased to a public charter school.  In 2014 the South Carolina general assembly passed legislation to “clarify” that property a public charter school leases is exempt from property taxes.  The ALC determined the legislation did not apply retroactively and denied the 2013 property tax refund claim.  The Court of Appeals determined the legislation clarified the existing law exempting public charter schools from state and local taxes and granted the 2013 refund claim.

Observations:  Determining when legislation clarifies existing law or represents a change in law can be difficult.  Taxpayers who believe DOR has misinterpreted existing law often seek to have clarifying legislation enacted and applied retroactively.  This decision demonstrates that taxpayers can seek clarifying legislation and that our courts will recognize that it applies retroactively.

Supreme Court Decisions

  • Richland County v. South Carolina Department of Revenue, Opinion No. 27775 (March 7, 2018)

This was a direct cross-appeal involving the scope of authority of the Department of Revenue (DOR) to enforce various provisions of state law relating to the imposition of a transportation penny tax by Richland County (County) and the County’s expenditure of the funds generated by the tax.  After DOR conducted an audit and informed the County that DOR intended to cease future remittances to the County based on purported misuse of funds, the County filed a declaratory judgment action in circuit court, arguing DOR lacked the authority to stop payments and seeking a writ of mandamus compelling DOR to continue remitting revenues.  DOR counterclaimed seeking a declaration that the County’s expenditures were unlawful, an injunction to prohibit future unlawful expenditures, and alternatively, the appointment of a receiver to administer the County’s tax revenues. Following a hearing, the circuit court issued a writ of mandamus compelling DOR to remit the tax revenues, denied DOR’s request for injunctive relief, and also refused to appoint a receiver. Both the County and DOR appealed.  The South Carolina Supreme Court affirmed the circuit court decision in all respects, except for the denial of DOR’s request for injunctive relief.  The South Carolina Supreme Court found DOR was entitled to an injunction requiring the County to expend the funds generated by the penny tax solely on transportation-related projects, and has remanded the case back to the circuit court to determine the scope of an applicable injunction.

Observations:  This is a unique case involving the authority of a state taxing agency over a local county government.  Local governments, who may have believed they were not subject to oversight by SCDOR, will now need to be prepared to respond to audit requests from SCDOR and to explain how their use of funds complies with the applicable laws.  The decision addressed the transportation penny tax specifically, but there are other local taxes collected by DOR that DOR may now seek to monitor.  DOR will need to seek a court order to enforce compliance with applicable tax laws if DOR disagrees with the manner a local government is using tax funds.

Pending Court of Appeals and Supreme Court Tax Cases

  • Home Depot v. SCDOR, Appellate Case No. 2018-000631

This case is discussed in the Administrative Law Court Decisions above.  Initial briefs have not yet been filed.

  • Greenville Hospital v. SCDOR, Appellate Case No. 2017-001548

Greenville Hospital System (GHS) applied for a sales tax exemption.  DOR denied the sales tax exemption and GHS requested a contested case hearing before the ALC.  GHS is a 501(c)(3) hospital/healthcare organization.  Items sold by certain organizations are exempt from sales tax.  The organizations that can qualify for the exemption are identified by cross-reference to property tax exemptions, and include 501(c)(3) organizations.  The cross-references do not include property tax exemptions for political subdivisions or hospitals.  The ALC determined GHS did qualify for the sales tax exemption because it was specifically described in property tax exemptions that were not included in the sales tax cross-reference list.  GHS appealed the ALC decision.  Final briefs have been filed in the appeal.

Observations:  This decision may have a significant impact on certain charitable organizations, and extend beyond sales tax to property tax.  Many charitable organizations are identified by specific class (e.g. churches and hospitals) for property tax exemption purposes, and there is also a broader exemption for charitable organizations generally.  The scope of these exemptions is not identical, with the broader exemption for charitable organizations often providing a more expansive exemption.  If the Court of Appeals determines that GHS does not qualify for the sales tax exemption because it is specifically described in one exemption then any organization that is specifically described in one exemption will need to carefully review the applicability of sales tax exemptions and property tax exemptions to its sales and property.

  • Books-A-Million v. SCDOR, Appellate Case No. 2017-001519

Books-A-Million sells memberships to customers that entitle them to certain discounts and perks.  DOR audited Books-A-Million and determined that it should have collected sales tax on the membership sales.  The ALC determined the sales of the memberships represented value proceeding or accruing from the sale of discounted tangible personal property and assessed sales taxes.  Final briefs have been filed.

Observations:  South Carolina courts have historically applied a “but for” test to determine whether revenues received incident to the sale of tangible personal property are subject to sales tax.  For example, layaway fees have been determined to be subject to sales tax.  If the memberships are determined to be subject to sales tax many organizations that charge for memberships will find themselves in uncertain territory.  For example, a country club that charges membership fees and also sells food, tennis equipment, and golf equipment could be found to be liable for sales tax on the membership fees.

  • Beltram v. SCDOR, Appellate Case No. 2017-000968

The procedural aspects of this case are discussed in the Administrative Law Court Decisions above.  For a substantive discussion of the original ALC opinion, see the prior blog “Personal Tax Liability as a Responsible Party in South Carolina.”  An amended final order was filed on March 17, 2017.  The taxpayer is not contesting that he is a responsible party, but is arguing that his liability is based on the dates of tax liens were filed and that he should receive an increased attorney fee award.

Observations:  This case involves an unusual fact pattern and the issues on appeal are unique.  If the Court of Appeals were to allows attorney fees/discovery sanctions to be imposed on DOR it would represent a welcome opportunity for taxpayers to recover certain litigation costs in limited instances.  With the parties not contesting the substantive aspects of the responsible party determination and notice requirements, the ALC decision remains the most current guidance on South Carolina responsible party determinations.

  • DIRECTV, Inc. v. SCDOR, Appellate Case No. 2018-000211

This is an income tax apportionment case where DOR has sourced DIRECTV’s revenues essentially on a market basis.  The Court of Appeals upheld the ALC’s determination that all revenues from South Carolina customers should be sourced to South Carolina.  DIRECTV argues that it has income producing activities outside of South Carolina and all revenues from South Carolina customers should not be sourced to South Carolina.  DIRECTV has filed a Petition for Writ of Certiorari, which is pending before the Supreme Court.

Observations:  This decision carries significant implications for multi-state businesses with South Carolina customers.  Most practitioners have not viewed South Carolina as a market basis state but this decision would open the door for DOR to tax more multi-state businesses on a market basis.  This would generally be disadvantageous to multi-state businesses who have significant expenses outside of South Carolina, but could be advantageous to businesses with significant South Carolina expenses and customers outside of South Carolina (these businesses should in fact consider filing protective refund claims).  The South Carolina Supreme Court is not required to hear the case and can simply let the Court of Appeals decision stand.

 

There were several notable state tax opinions issued by the South Carolina Administrative Law Court, Court of Appeals, and Supreme Court in the 1st quarter of 2018.  A number of tax cases are also pending before the Court of Appeals and Supreme Court.  Administrative Law Court property tax opinions are not addressed in this update.

South Carolina Administrative Law Court Decisions

  • Home Depot U.S.A., Inc., d/b/a/ The Home Depot v. South Carolina Department of Revenue, Docket No. 15-ALJ-17-0253-CC (March 12, 2018).

DOR assessed additional sales tax after concluding Home Depot improperly remitted use tax based upon its cost for materials used in its install contracts rather than remitting sales tax based on the retail selling price of the materials used in its install contracts.  Home Depot would charge customers the retail sales price for materials used in install contracts, but remitted use tax based on its cost of the materials instead of collecting sales tax on the retail sales price.  Home Depot argued it was a contractor when it sold install contracts to customers and properly remitted use tax based on its cost of materials.  DOR argued Home Depot was acting as a retailer and should have collected sales tax on the retail sales price of the materials.  The case was heard before Chief Administrative Law Judge Ralph King Anderson, III.  Judge Anderson’s opinion found Home Depot was acting as a retailer and should have collected sales tax on the retail sales price of materials, not Home Depot’s wholesale cost.  A notice of appeal was filed on April 10, 2018.

Observations:  Taxpayers who operate as both a contractor and a retailer should carefully review this opinion and its potential impact.  Taxpayers should consider restructuring their activities to segregate their retail and contractor operations, or at least separately account for these activities, to avoid DOR arguments that the contractor operations should be taxed as a retail business.

  • Dollar Tree Stores, Inc. v. South Carolina Department of Revenue, Docket No. 17-ALJ-17-0414-CC (February 6, 2018)

DOR issued a proposed assessment of about $2,700,000 to Dollar Tree.  Dollar Tree failed to protest the proposed assessment within the applicable 90 day protest period and DOR then assessed the liability.  Dollar Tree filed a contested case hearing request with the South Carolina Administrative Law Court approximately five months after the proposed assessment was issued, asking the ALC to remove the assessment and remand the matter to SCDOR.  The ALC can remove an assessment for good cause and remand the matter to DOR.  Dollar Tree argued the proposed assessment was issued to a junior, inexperienced employee who graduated college in 2016.  The ALC determined good cause was not present, noting subsequent interactions with the Department and Dollar Tree’s designation of the employee as the point of contact.  The ALC observed that Dollar Tree could pay the assessment, file a refund claim, and then request a hearing before the ALC if the refund claim was denied.

Observations:  The ALC has issued a number of opinions which show that “good cause” for missing the 90 day protest period is a high standard that may be difficult to meet.  In most instances, if the 90-day protest period is missed, the only remedy may be to pay the tax at issue and file a refund claim.    For a refund claim to be filed, and where multiple tax periods are involved in a DOR audit, DOR may argue that the taxes (and all penalties and interest) must be first paid for each and every tax period in an audit; however, the administrative position of DOR in this regard may not be correct and a taxpayer should be able to pay taxes (and any penalties and interest) for any one tax period and file a claim for refund.  Each tax period should be a separate cause of action for refund purposes.

  • Beltram v. South Carolina Department of Revenue, Docket No. 13-ALJ-17-0244-CC (January 12, 2018)

This is a responsible party case that is on appeal to the Court of Appeals.  The taxpayer appealed a decision of the ALC but failed to pay the tax determined to be due in the ALC’s decision.  The Court of Appeals remanded the matter to the ALC to determine the amount of taxes the taxpayer was required to pay.  The taxpayer argued it was the amount shown on filed tax liens and that interest should not be included.  The ALC determined the full tax liability for the periods at issue, and interest, had to be paid.

Observations:  Briefs have now been filed with the Court of Appeals and DOR is arguing the taxpayer’s appeal should be dismissed in any event because the statute allowing taxpayers to appeal a decision of the ALC requires the tax to be paid before an appeal is filed.  A taxpayer challenging a liability before the ALC should be prepared to pay the taxes at issue if it contemplates appealing an adverse decision by the ALC.  A Notice of Appeal must be filed within 30 days of the date an ALC order is entered.  The Court of Appeals may allow the appeal in Beltram to proceed because of unique facts in the case, but taxpayers should assume their appeal from an ALC decision will be dismissed if they do not pay the taxes at issue before filing a Notice of Appeal.

Court of Appeals Decisions

  • Hock RH, LLC v. South Carolina Department of Revenue, Appellate Case No. 2015-002087 (March 28, 2018)

York Preparatory Academy (YPA) and Hock RH, LLC appealed an order of the Administrative Law Court affirming the South Carolina Department of Revenue’s (DOR’s) denial of a property tax exemption request and refund of 2013 property taxes.  YPA, a public charter school, leased property Hock RH, LLC.  Public charter schools are generally exempt from state and local taxes, including property taxes.  In 2013 a property tax exemption request was filed with DOR.  DOR denied the request because there is no property tax exemption for property leased to a public charter school.  In 2014 the South Carolina general assembly passed legislation to “clarify” that property a public charter school leases is exempt from property taxes.  The ALC determined the legislation did not apply retroactively and denied the 2013 property tax refund claim.  The Court of Appeals determined the legislation clarified the existing law exempting public charter schools from state and local taxes and granted the 2013 refund claim.

Observations:  Determining when legislation clarifies existing law or represents a change in law can be difficult.  Taxpayers who believe DOR has misinterpreted existing law often seek to have clarifying legislation enacted and applied retroactively.  This decision demonstrates that taxpayers can seek clarifying legislation and that our courts will recognize that it applies retroactively.

Supreme Court Decisions

  • Richland County v. South Carolina Department of Revenue, Opinion No. 27775 (March 7, 2018)

This was a direct cross-appeal involving the scope of authority of the Department of Revenue (DOR) to enforce various provisions of state law relating to the imposition of a transportation penny tax by Richland County (County) and the County’s expenditure of the funds generated by the tax.  After DOR conducted an audit and informed the County that DOR intended to cease future remittances to the County based on purported misuse of funds, the County filed a declaratory judgment action in circuit court, arguing DOR lacked the authority to stop payments and seeking a writ of mandamus compelling DOR to continue remitting revenues.  DOR counterclaimed seeking a declaration that the County’s expenditures were unlawful, an injunction to prohibit future unlawful expenditures, and alternatively, the appointment of a receiver to administer the County’s tax revenues. Following a hearing, the circuit court issued a writ of mandamus compelling DOR to remit the tax revenues, denied DOR’s request for injunctive relief, and also refused to appoint a receiver. Both the County and DOR appealed.  The South Carolina Supreme Court affirmed the circuit court decision in all respects, except for the denial of DOR’s request for injunctive relief.  The South Carolina Supreme Court found DOR was entitled to an injunction requiring the County to expend the funds generated by the penny tax solely on transportation-related projects, and has remanded the case back to the circuit court to determine the scope of an applicable injunction.

Observations:  This is a unique case involving the authority of a state taxing agency over a local county government.  Local governments, who may have believed they were not subject to oversight by SCDOR, will now need to be prepared to respond to audit requests from SCDOR and to explain how their use of funds complies with the applicable laws.  The decision addressed the transportation penny tax specifically, but there are other local taxes collected by DOR that DOR may now seek to monitor.  DOR will need to seek a court order to enforce compliance with applicable tax laws if DOR disagrees with the manner a local government is using tax funds.

Pending Court of Appeals and Supreme Court Tax Cases

  • Home Depot v. SCDOR, Appellate Case No. 2018-000631

This case is discussed in the Administrative Law Court Decisions above.  Initial briefs have not yet been filed.

  • Greenville Hospital v. SCDOR, Appellate Case No. 2017-001548

Greenville Hospital System (GHS) applied for a sales tax exemption.  DOR denied the sales tax exemption and GHS requested a contested case hearing before the ALC.  GHS is a 501(c)(3) hospital/healthcare organization.  Items sold by certain organizations are exempt from sales tax.  The organizations that can qualify for the exemption are identified by cross-reference to property tax exemptions, and include 501(c)(3) organizations.  The cross-references do not include property tax exemptions for political subdivisions or hospitals.  The ALC determined GHS did qualify for the sales tax exemption because it was specifically described in property tax exemptions that were not included in the sales tax cross-reference list.  GHS appealed the ALC decision.  Final briefs have been filed in the appeal.

Observations:  This decision may have a significant impact on certain charitable organizations, and extend beyond sales tax to property tax.  Many charitable organizations are identified by specific class (e.g. churches and hospitals) for property tax exemption purposes, and there is also a broader exemption for charitable organizations generally.  The scope of these exemptions is not identical, with the broader exemption for charitable organizations often providing a more expansive exemption.  If the Court of Appeals determines that GHS does not qualify for the sales tax exemption because it is specifically described in one exemption then any organization that is specifically described in one exemption will need to carefully review the applicability of sales tax exemptions and property tax exemptions to its sales and property.

  • Books-A-Million v. SCDOR, Appellate Case No. 2017-001519

Books-A-Million sells memberships to customers that entitle them to certain discounts and perks.  DOR audited Books-A-Million and determined that it should have collected sales tax on the membership sales.  The ALC determined the sales of the memberships represented value proceeding or accruing from the sale of discounted tangible personal property and assessed sales taxes.  Final briefs have been filed.

Observations:  South Carolina courts have historically applied a “but for” test to determine whether revenues received incident to the sale of tangible personal property are subject to sales tax.  For example, layaway fees have been determined to be subject to sales tax.  If the memberships are determined to be subject to sales tax many organizations that charge for memberships will find themselves in uncertain territory.  For example, a country club that charges membership fees and also sells food, tennis equipment, and golf equipment could be found to be liable for sales tax on the membership fees.

  • Beltram v. SCDOR, Appellate Case No. 2017-000968

The procedural aspects of this case are discussed in the Administrative Law Court Decisions above.  For a substantive discussion of the original ALC opinion, see the prior blog “Personal Tax Liability as a Responsible Party in South Carolina.”  An amended final order was filed on March 17, 2017.  The taxpayer is not contesting that he is a responsible party, but is arguing that his liability is based on the dates of tax liens were filed and that he should receive an increased attorney fee award.

Observations:  This case involves an unusual fact pattern and the issues on appeal are unique.  If the Court of Appeals were to allows attorney fees/discovery sanctions to be imposed on DOR it would represent a welcome opportunity for taxpayers to recover certain litigation costs in limited instances.  With the parties not contesting the substantive aspects of the responsible party determination and notice requirements, the ALC decision remains the most current guidance on South Carolina responsible party determinations.

  • DIRECTV, Inc. v. SCDOR, Appellate Case No. 2018-000211

This is an income tax apportionment case where DOR has sourced DIRECTV’s revenues essentially on a market basis.  The Court of Appeals upheld the ALC’s determination that all revenues from South Carolina customers should be sourced to South Carolina.  DIRECTV argues that it has income producing activities outside of South Carolina and all revenues from South Carolina customers should not be sourced to South Carolina.  DIRECTV has filed a Petition for Writ of Certiorari, which is pending before the Supreme Court.

Observations:  This decision carries significant implications for multi-state businesses with South Carolina customers.  Most practitioners have not viewed South Carolina as a market basis state but this decision would open the door for DOR to tax more multi-state businesses on a market basis.  This would generally be disadvantageous to multi-state businesses who have significant expenses outside of South Carolina, but could be advantageous to businesses with significant South Carolina expenses and customers outside of South Carolina (these businesses should in fact consider filing protective refund claims).  The South Carolina Supreme Court is not required to hear the case and can simply let the Court of Appeals decision stand.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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