Sparks Nugget, Inc. v. State Ex Rel. Department of Taxation
Sparks Nugget, Inc. v. State Ex Rel. Department of Taxation
Opinion of the Court
OPINION
In this appeal, we confront an issue of constitutional importance to Nevada: whether businesses in this state are required to pay sales or use tax on meals that they provide free of charge to patrons and employees. Article 10, Section 3(A) of the Nevada Constitution establishes a sales and use tax exemption for most ‘ ‘food for human consumption.’ ’ Appellant contends that complimentary patron and employee meals are exempted under this provision because the uncooked food used to prepare those meals qualified as “food for human consumption” at the time of its initial purchase, and no taxable event occurred thereafter. We agree. Since no taxable event occurred between the time appellant initially purchased the food used to prepare complimentary meals (in a tax-exempt transaction) and the time appellant gave those meals away, the meals were exempt from sales and use taxation under the plain and unambiguous language of the Nevada Constitution.
FACTS AND PROCEDURAL HISTORY
Appellant Sparks Nugget, Inc., owns and operates John Ascuaga’s Nugget, a hotel and casino resort in Sparks, Nevada. Like many hotel and casino resorts, the Nugget operates a number of
Following its nontaxable, unprepared food purchases, the Nugget places the food in its inventory. The Nugget later removes the food from its inventory and prepares the food for consumption by resort patrons and employees, distributing the prepared food in one of two ways: the Nugget either sells the prepared food as meals in its restaurants or gives the food away in the form of complimentary meals. When the Nugget sells the food, it collects the applicable sales tax from the purchaser and remits that amount to respondent, the Nevada Department of Taxation (Tax Department). By contrast, the Nugget does not collect sales tax on complimentary meals. Instead, the Nugget is charged use tax on the food used to prepare the meals.
Between April 1999 and February 2002, the period relevant to this appeal, the Nugget paid use tax on the food it used to prepare complimentary patron and employee meals. In May 2002, the Nugget filed a claim with the Tax Department, seeking a refund of that money. In its refund claim, the Nugget argued that the food it purchased and used for complimentary patron and employee meals was not subject to either sales or use tax.
In support of its argument, the Nugget cited three provisions of Nevada law: (1) Article 10, Section 3(A) of the Nevada Constitution; (2) NRS 372.284; and (3) NRS 374.289.
Following the denial of its claim, the Nugget administratively appealed the Tax Department’s decision to the tax commission. That appeal proved unsuccessful, however, and having exhausted its administrative remedies, the Nugget then sued the Tax Department in district court, again seeking a refund of the use taxes that it had paid with respect to complimentary patron and employee meals.
In district court, the parties stipulated to the operative facts and filed cross-motions for summary judgment. After considering the motions, the district court granted summary judgment in the Tax Department’s favor, concluding that the food that the Nugget removed from its inventory and served as complimentary meals to
DISCUSSION
Standard of review
We review a district court’s order granting summary judgment de novo.
When interpreting a constitutional or statutory provision of plain and unambiguous language, we generally may not go beyond that language in construing the provision.
Because this case specifically involves the interpretation of a tax exemption, we will strictly construe its meaning.
Relevant sales and use tax provisions
Nevada imposes an excise tax, known as a sales tax, on the retail sale of tangible personal property in this state.
The Nevada Constitution and several statutory provisions exempt certain retail sales from sales and use taxation. For example, the primary provision at issue here — Article 10, Section 3(A) of the Nevada Constitution — establishes a broad sales and use tax exemption with respect to “food for human consumption,” stating that “the legislature shall provide by law for . . . [t]he exemption of food for human consumption from any tax upon the sale, storage, use or consumption of tangible personal property.” Although Section 3(A) does not specifically define “food for human consumption,” it does specify that “[prepared food intended for immediate consumption” and “[a]lcoholic beverages” must be excluded from the exemption.
In accordance with Article 10, Section 3(A), the Legislature enacted NRS 372.284, which provides,
1. There are exempted from the taxes imposed by this chapter the gross receipts from sales and the storage, use or other consumption of food for human consumption.
2. “Food for human consumption” does not include:
*165 (a) Alcoholic beverages.
(b) Pet foods.
(c) Tonics and vitamins.
(d) Prepared food intended for immediate consumption.14
Under Article 10, Section 3(A) and NRS 372.284, therefore, both the sale and the use of “food for human consumption” are exempt from taxation in Nevada.
Because the Tax Department relied upon Nevada’s use tax — not the sales tax — in collecting the taxes at issue here, the applicability of the use tax is the primary issue on appeal.
Nevada use tax does not apply to the Nugget’s complimentary patron and employee meals
In Nevada, use tax liability is measured by the gross retail income received in an otherwise untaxed retail transaction, and it is imposed at the same rate as Nevada’s sales tax.
By contrast, here, the Nugget’s initial purchases of unprepared food did not “escape” sales tax liability since Nevada’s constitution exempts such purchases from sales and use taxation. Indeed, Nevada’s constitutionally mandated food exemption applies to all “food for human consumption,” unless that food is “prepared food intended for immediate consumption.’ ’
Other states have enacted similar food exemptions.
Horseshoe Hammond involved a fact pattern that is substantially similar to the one currently before us: a casino acquired food in a tax-exempt transaction and later prepared and gave away some of that food in the form of complimentary meals.
Despite the taxability of prepared food intended for immediate consumption, the Horseshoe Hammond court concluded that both the casino’s initial “purchase of unprepared food items, and its subsequent use thereof, [were] exempt from tax” under the general food exemption.
Like the Horseshoe Hammond court, we conclude that the Nugget’s complimentary patron and employee meals are use tax exempt in Nevada since the way in which the Nugget uses its tax exempt “food for human consumption” is irrelevant for purposes of applying the use tax.
Nevada’s food exemption could have been written in a more limited fashion.
Given the unambiguous constitutional mandate to maintain the tax-exempt status of “food for human consumption,” we conclude that Nevada’s food exemption applies to the Nugget’s use of the food in question to prepare and serve complimentary patron and employee meals.
CONCLUSION
We conclude that, under the facts of this case, no taxable event occurred when the Nugget provided complimentary meals to its patrons and employees. Thus, the Nugget is owed a refund for use
While the general Sales and Use Tax Act is set forth in NRS Chapter 372, a similar tax is imposed under NRS Chapter 374. For purposes of simplicity, we will discuss only NRS Chapter 372. Our conclusions, however, also apply to all relevant provisions of NRS Chapter 374.
Notably, the district court appeared to rely mainly on our decision in State, Tax Commission v. Nevada Cement Co., 117 Nev. 960, 960-70, 36 P.3d 418, 418-24 (2001), as its basis for rejecting the Nugget’s refund claim. In Nevada Cement, we concluded that the sale of factory equipment purchased for use in the production of cement was taxable as a “retail sale” under the “primary purpose” test and thus was not exempt from sales and use taxation under another exemption that applies to goods purchased solely for resale. Id. Unlike Nevada Cement, this case does not involve whether a particular sale qualified as a taxable “retail sale,” under Nevada’s “sale for resale” exemption. Instead, because the Nugget’s purchases of unprepared food were clearly not taxable under Nevada’s food exemption, the issue before us is whether the Nugget’s later use of that food (by preparing it and giving it away to patrons and employees free of charge) was taxable. For this reason, the Nugget’s “primary purpose” for obtaining the unprepared food is irrelevant to our resolution of this appeal, and our decision in Nevada Cement does not apply here.
Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
Walker v. Dist. Ct., 120 Nev. 815, 819, 101 P.3d 787, 790 (2004).
Nevada Power Co. v. Public Serv. Comm’n, 102 Nev. 1, 4, 711 P.2d 867, 869 (1986); see Harvey v. Dist. Ct., 117 Nev. 754, 763, 32 P.3d 1263, 1269 (2001) (recognizing that “the rules of statutory construction apply when we interpret constitutional provisions”).
Nevada Power, 102 Nev. at 4, 711 P.2d at 869.
Shetakis Dist. v. State, Dept. Taxation, 108 Nev. 901, 907, 839 P.2d 1315, 1319 (1992); Sierra Pac. Power v. Department Taxation, 96 Nev. 295, 297, 607 P.2d 1147, 1148 (1980).
Dawley, Inc. v. Indiana Dept. of State Revenue, 605 N.E.2d 1222, 1225 (Ind. T.C. 1992).
NRS 372.105.
NRS 372.050.
NRS 372.185; see also NRS 372.190 (explaining that the user of purchased property is generally liable for the use tax).
State, Dep’t Taxation v. Kelly-Ryan, Inc., 110 Nev. 276, 280, 871 P.2d 331, 334 (1994); see also NRS 372.345 (noting that use tax does not apply to property if sales tax was already collected with respect to that property’s sale).
Nev. Const. art. 10, § 3(A)(2)(a) and (b).
See also NRS 372.265 (recognizing that items prohibited from taxation under the Nevada Constitution are not taxable under NRS Chapter 372).
Although the Tax Department has argued that Nevada sales tax could also apply to the complimentary meals at issue, sales tax can only apply when there has been a transfer of personal property “for a consideration,” which has not been demonstrated in this case. NRS 372.060; NRS 372.050(1); see NRS 372.105; Pink v. Busch, 100 Nev. 684, 688, 691 P.2d 456, 459 (1984); see also Horseshoe Hammond v. Dept. of State Revenue, 865 N.E.2d 725, 729 (Ind. T.C. 2007); Boardwalk Regency Corp. v. Director, Div. of Taxation, 18 N.J. Tax 328, 330 (Sup. Ct. App. Div. 1999). Still, we do not foreclose the possibility that complimentary meals such as the ones at issue in this case may be subject to sales tax where consideration is properly demonstrated.
NRS 372.185; see NRS 372.105 (establishing rate of state sales tax).
NRS 372.185.
See id.
Id.; but see NRS 372.320 (exempting “occasional sales” from Nevada sales and use taxes).
Nev. Const. art. 10, § 3(A); NRS 372.284.
State, Dep’t Taxation v. Kelly-Ryan, Inc., 110 Nev. 276, 280, 871 P.2d 331, 334 (1994); see also NRS 372.345 (noting that use tax does not apply to property if sales tax was already collected with respect to that property’s sale).
E.g., Cal. Const. art. 13, § 34; Fla. Stat. Ann. § 212.08(1) (West 2005); Ind. Code § 6-2.5-5-20 (2007); R.I. Gen. Laws §§ 44-18-7(d)(1), 44-18-30(9) (2005); Tex. Tax Code Ann. § 151.314 (Vernon 2002).
Horseshoe Hammond v. Dept. of State Revenue, 865 N.E.2d 725 (Ind. T.C. 2007); Hyatt Corp. v. Dept. of State Revenue, 695 N.E.2d 1051 (Ind. T.C. 1998).
865 N.E.2d at 732.
Id. at 730.
Id. at 730-31.
Id. at 731. Specifically, the Indiana statute excluded “food furnished, prepared, or served for consumption at a location, or on equipment, provided by the retail merchant” from that state’s food exemption. Ind. Code § 6-2.5-5-20(c)(8).
Id. at 732 n.12 (emphasis added).
Id.
Id.
The dissent contends that we have ignored the constitution’s plain language in reaching this conclusion. To the contrary, our conclusion is based solely on the constitution’s language and the nearly identical wording of NRS 372.284: no sales or use tax may be imposed on the “sales . . . storage, use, or other consumption of food for human consumption.” Moreover, this case is far more complex than the dissent suggests because it requires not only our interpretation of Nevada’s constitutional directive exempting food from use taxation, but also our understanding of the ever-elusive use tax’s application. Indeed, the dissent ignores the manner in which the use tax operates in an apparent attempt to reach a more desirable result. We cannot in good conscience follow that approach. See Nevadans for Nevada v. Beers, 122 Nev. 930, 948, 142 P.3d 339, 351 (2006) (explaining that “the Nevada Constitution is the organic and fundamental law of this state”). Finally, given the constitution’s plain meaning, well-established tenets of statutory construction preclude the dissent’s consideration of legislative intent. Nevada Power Co. v. Public Serv. Comm’n, 102 Nev. 1, 4, 711 P.2d 867, 869 (1986).
Arizona, for example, limits its food exemption to sales of food for home consumption made by retail grocers or other similar businesses. Ariz. Rev. Stat. Ann. § 42-5101(3) (2006) (defining “food” as “any food item intended for human consumption which is intended for home consumption”); id. § 42-5102(A)(l) (exempting sales of food from “[a] retailer who conducts an eligible grocery business”); but see id. § 42-5351 (defining sales tax on jet fuel retail sales, as sales “for any purpose other than a sale for resale in the regular course of business”).
NRS 372.185(2). By contrast, when the Nugget prepares and sells its exempted food, the sale of that food is subject to taxation because the food (as sold) is intended for immediate consumption. Nev. Const. art. 10, § 3(A). However, even in that scenario, the Nugget’s use of the food is exempt. See Horseshoe Hammond, 865 N.E.2d at 732 (concluding that provision of complimentary meals to business patrons is exempt from use taxation).
Dissenting Opinion
dissenting:
The majority has fashioned a result that appears to be practical and well reasoned as to the payment of sales or use tax on meals that are provided free of charge to patrons and employees. Unfortunately, that result fails to accurately assess the import of the Nevada Constitution, NRS 372.284, and NRS 374.289, and it ignores the need to strictly construe the constitution’s meaning.
The legislature shall provide by law for:
1. The exemption of food for human consumption from any tax upon the sale, storage, use or consumption of tangible personal property; and
2. These commodities to be excluded from any such exemption:
(a) Prepared food intended for immediate consumption.
(b) Alcoholic beverages.
That provision plainly provides that “[pjrepared food intended for immediate consumption” is not included in the “food for human consumption” that is exempt from taxes.
Thus, in light of the constitution’s plain and unambiguous language, there is simply no room for construction of the constitution or its pertinent statutes — e.g., NRS 372.284 and NRS 374.289 — by the court.
Moreover, the Legislature has noted that the exemption was intended to cover the purchase of food for preparation and con
Additionally, in light of the above discussion, I conclude that the majority’s adoption of the reasoning stated in Horseshoe Hammond v. Department of State Revenue
In short, by accepting the Nugget’s arguments, the majority creates a loophole within Nevada’s tax law that is contrary to the plain language of the Nevada Constitution, the pertinent statutes, and the food exemption’s purpose.
For the reasons stated, I dissent.
See Sierra Pac. Power v. Department Taxation, 96 Nev. 295, 297, 607 P.2d 1147, 1148 (1980) (“As a general rule, tax exemptions are strictly construed. There is a presumption that the state does not intend to exempt goods or transactions from taxation. Thus, the one claiming exemption must demonstrate clearly an intent to exempt.” (internal citations omitted)).
NRS 372.284 and NRS 374.289 likewise exclude “ [prepared food intended for immediate consumption” from the tax exemption on food for human consumption.
See Nevada Power Co. v. Public Serv. Comm’n, 102 Nev. 1, 4, 711 P.2d 867, 869 (1986).
108 Nev. 901, 907, 839 P.2d 1315, 1319 (1992).
See 1995 Nev. Stat., ch. 689, § 1(3), at 2665 (clarifying the legislative intent concerning sales tax application to food for immediate consumption).
865 N.E.2d 725 (Ind. T.C. 2007).
Reference
- Full Case Name
- SPARKS NUGGET, INC., Appellant, v. THE STATE OF NEVADA Ex Rel. DEPARTMENT OF TAXATION, Respondent
- Cited By
- 6 cases
- Status
- Published