8x8, Inc. v. United States, 2017 U.S. App. LEXIS 7410

8x8 provided VoIP telephone service; customers bought a digital terminal adapter (DTA), subscribed online, accepted Terms and Conditions, and paid by credit card. Monthly invoices separately listed a federal communications excise tax (FCET).
8x8 purchased backbone transport from carriers (Level(3), Global Crossing) but issued them exemption certificates so 8x8 did not pay FCET to those carriers.
The IRS issued Notices (2006-50, 2007-11) treating many time‑only and certain VoIP services as non‑taxable and provided a refund process for taxes collected between 2003–2006; collectors could seek refunds only if they repaid customers or obtained customers’ written consent (I.R.C. §6415(a)).
8x8 filed an administrative refund claim for FCET remitted March 2003–July 2006, exhausted remedies, and sued in the Court of Federal Claims for >$1M refund; the Claims Court granted summary judgment for the Government.
Parties stipulated facts showing 8x8 billed and separately stated the FCET and its Terms made customers responsible for applicable taxes; 8x8 did not refund collected FCET to customers nor obtain customers’ consent to pursue refunds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 8x8 may recover FCET under I.R.C. §6415 despite collecting and remitting tax	8x8 argues it was not a mere collector but the transferee/person paying for services from carriers and thus bore the tax; alternatively it effectively paid by raising prices to customers	Government: 8x8 acted as a collector that separately billed and collected FCET and failed to meet §6415 conditions (no refunds to customers, no consent)	Held: 8x8 is a collector and cannot recover because it neither refunded customers nor obtained their consent under §6415(a)
Whether 8x8 bore the economic burden (standing separate from §6415)	8x8 claims it bore the burden by absorbing or passing cost into prices (paid tax) and thus may sue for refund	Government: invoices, Terms, and billing practices show the tax was a separate line item and customers bore the cost	Held: As a matter of law 8x8 passed the tax to customers (separate line item, Terms), so it did not bear the economic burden and lacks standing to recover

Frankel v. United States, 842 F.3d 1246 (Fed. Cir. 2016) (standard of review for summary judgment in Court of Federal Claims decisions)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment burden and standards)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (definition of genuine dispute and material fact at summary judgment)
Lewis v. Reynolds, 284 U.S. 281 (U.S. 1932) (plaintiff seeking refund must show government holds money that belongs to him)
United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386 (U.S. 1934) (seller who shifts tax burden to purchasers lacks standing to recover without protections)
Worthington Pump & Mach. Corp. v. United States, 129 Ct. Cl. 87 (Ct. Cl. 1954) (factors for determining whether tax was passed on to customers)
Gumpert v. United States, 155 Ct. Cl. 721 (Ct. Cl. 1961) (collector who passed expense to customers lacks standing to recover)
Epstein v. United States, 174 Ct. Cl. 1158 (Ct. Cl. 1966) (collector who bore economic burden may recover)