Case Information
*1 Filed 12/18/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
CITY OF SOUTH SAN FRANCISCO, Plaintiff and Appellant, A137173 v. (San Francisco City and County
BOARD OF EQUALIZATION, Super. Ct. No. CPF-09-509231) Defendant and Appellant;
CITY OF EL SEGUNDO et al.,
Interveners and Appellants.
CITY OF ALAMEDA et al.,
Plaintiffs and Appellants, A137186 v. (San Francisco City and County BOARD OF EQUALIZATION, Super. Ct. No. CPF-09-509234)
Defendant and Appellant;
CITY OF EL SEGUNDO et al.,
Interveners and Appellants.
Under the State Board of Equalization’s (SBE) interpretation of the Revenue and Taxation Code, all retail sales of tangible personal property stored, used, or consumed in California are subject, with limited exceptions, to either a state sales or use tax. SBE applies a state sales tax when a California business is involved in the sale and title to the property passes to the customer in California. (See Rev. & Tax Code, §§ 6006, subd. (a); 6010.5, 6051; Cal. U. Com. Code, § 2401, subd. (2).) If these two conditions are not *2 satisfied, the sale is subject to a use tax. (See Rev. & Tax Code, §§ 6201, 6202, 6203, 6401.) 1
For over 50 years SBE has interpreted the local sales and use tax law (the Bradley- Burns Uniform Local Sales and Use Tax Law (Bradley-Burns Act); § 7200 et seq.) as being consistent with section 6001 et seq. of the California Sales and Use Tax Law (the State Tax Law). Accordingly, it subjects the retail sale of personal property to a local sales tax whenever the state sales tax applies and subjects such a sale to a local use tax whenever the state use tax applies. (See Cal. Code Regs., tit. 18, § 1803.) 2 Whether SBE administers a local sales or use tax has significant consequences for cities and counties: all local sales tax revenue goes to the city where the sale was consummated while local use tax revenue is allocated to the county and distributed by the county to its cities out of a countywide pool. The city in which the sale was transacted will usually receive less revenue when a local use tax rather than a local sales tax is imposed.
Seven California cities (City Petitioners) filed for writ of mandate objecting to SBE’s determination that the Bradley-Burns Act and the State Tax Law are identical when determining whether to apply a sales or use tax. Unlike SBE, City Petitioners claimed that under section 7205, subdivision (a), of the Bradley-Burns Act, all sales negotiated in a business in their city should be subject to a local sales tax — not a local use tax. Under their construction of the statutes, a local sales tax applies to all transactions consummated at a retail store in California even when the purchased item is shipped from an out-of-state warehouse to the California consumer and the transaction is therefore subject to a state use tax . The trial court agreed with City Petitioners’ interpretation of section 7205, subdivision (a), but denied City Petitioners’ request to have the relief apply retroactively.
This appeal presents two principal questions: Did the trial court correctly interpret section 7205, subdivision (a) and did SBE abuse its discretion by using the California All further unspecified code sections refer to the Revenue and Taxation Code. All references to regulations are to sections in title 18 of the California Code of Regulations.
Uniform Commercial Code (CUCC) to determine when title to the goods passed? We conclude SBE has been applying the law correctly. Accordingly, we reverse the portion of the judgments granting the petitions for writ of mandate.
BACKGROUND
Legal Background
State Tax Law
California “entered the field of sales and use taxes . . . with the enactment of the
Retail Sales Tax Act of 1933 (Stats. 1933, ch. 1020, § 1, p. 2559), and the Use Tax Act of
1935 (Stats. 1935, ch. 361, § 1, p. 1297.)” (
Rivera v. City of Fresno
(1971)
The sales tax is imposed on retailers “[f]or the privilege of selling tangible
personal property at retail . . . in this state . . . .” (§ 6051.) “The retailer is the taxpayer,
not the consumer.” (
Loeffler v. Target Corp.
(2014)
In contrast, “the use tax falls on the purchaser, although the retailer may collect the
tax as an agent. (§§ 6202, 6203 . . . .)” (
Loeffler v. Target Corp., supra,
58 Cal.4th at p.
1104, fn. 5.) California imposes a use tax on tangible personal property that is (1)
purchased from a retailer, (2) stored, used, or consumed in this state, and (3) for which no
California sales tax was paid at the time of purchase. (§§ 6201, 6202, 6401; Cal. Code
Regs., tit. 18, § 1620, subd. (b);
Searles Valley Minerals Operations, Inc. v. State Bd. of
Equalization
(2008)
The use tax complements the sales tax by preventing the sales tax from resulting in
an “ ‘unfair burden being placed upon the local retailer engaged solely in intrastate
commerce as compared with the case where the property is
purchased
[out of state]
for use
or storage in California and is used or stored in this state. The two taxes are
complementary to each other with the aim of placing the local retailers and their out-of-
state competitors on an equal footing.’ ” (
Union Oil Co. v. State Bd. of Equalization
(1963)
In 1956, SBE promulgated SBE Ruling 2203, the predecessor of present Regulation 1803. This ruling stated: “(a) In any case in which state sales tax is applicable . . . , state-administered local sales tax is also applicable, if the place of sale . . . is in a county having a state-administered local tax, or is in a city within such a county. In any case in which the state sales tax is inapplicable . . . , state-administered local sales tax is also inapplicable. Thus, if title to the property sold passes to the purchaser at a point outside this State, state-administered local sales tax does not apply regardless of participation in the transaction by a California retailer. . . .”
In 1970, SBE promulgated Regulation 1803, which amended and renumbered former ruling 2203. Regulation 1803 provides in relevant part: “(a) Sales Tax. [¶] (1) IN GENERAL. Except as stated below, in any case in which state sales tax is applicable, *5 state-administered Bradley-Burns uniform local sales tax is also applicable, if the place of sale is in a county imposing a state-administered local tax. In any case in which state sales tax is inapplicable, state-administered local sales tax is also inapplicable. Thus, if title to the property sold passes to the purchaser at a point outside this state, state- administered local sales tax does not apply regardless of participation in the transaction by a California retailer. . . .”
Seven years earlier, in 1963, the California Legislature adopted the California version of the Uniform Commercial Code. Section 2401, subdivision (2), of the CUCC states in pertinent part: “Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading. [¶] (a) If the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but [¶] (b) If the contract requires delivery at destination, title passes on tender there.” (Cal. U. Com. Code, § 2401, subd. (2); see Cal. Code Regs., tit. 18, § 1620, subd. (a)(2)(A).)
In 1965, the Legislature enacted section 6010.5 (Assem. Bill No. 1086). It states: “For the purposes of this part, the place of the sale or purchase of tangible personal property is the place where the property is physically located at the time the act constituting the sale or purchase, as defined in this part, takes place.” (§ 6010.5.) A Memorandum dated July 8, 1965, written by Hale Champion, Director of Finance, to Governor Edmund G. Brown, stated that this statute “would maintain the status quo and prevent complications which might result from recent changes in the Uniform Commercial Code.” According to a letter dated June 10, 1965, to the Governor from Assemblyman Alfred E. Alquist, this statute was necessary “because of a provision in the Commercial Code which provides that the place of sale can be where the documents of title are exchanged. The Commercial Code provision would allow avoidance of the sales *6 tax on the sale of property physically located in California by exchanging documents of title outside of California.”
Local Tax Law
In 1955, the Legislature enacted the Bradley-Burns Act, which became operative in 1956, as part of the Revenue and Taxation Code. (§ 7200, et seq.; Stats. 1955, ch. 1311, § 1, p. 2381; see County of Sonoma v. State Bd. of Equalization (1987) 195 Cal.App.3d 982, 985.) The Act authorizes counties and cities to apply a local sales or use tax, but they are required to contract with SBE for the performance of all administrative functions, including tax collection. (§ 7202, subd. (d).) Once SBE collects county sales taxes, SBE is obligated to transmit those revenues back to the counties pursuant to contract or state law. (§ 7204.)
The purpose of the Bradley-Burns Act “was to provide an additional source of tax
revenue for counties, to encourage uniform and integrated sales and use tax programs
throughout the respective counties, to require a city retailer to pay only one combined
sales and use tax (with the city retaining all of the tax imposed under the city ordinance
and the county receiving the difference, if any, between the city tax and the county tax),
and to make available to the cities and counties the distinct advantage of having the
integrated sales and use tax program administered and the taxes collected by the state.”
(
City of San Joaquin v. State Bd. of Equalization
(1970)
A county must first adopt an ordinance imposing a one and one-quarter percent sales and use tax throughout the county. (§§ 7202, subds. (a)-(g), 7203.) Each city Section 7203 provides the following regarding the local use tax: “The use tax portion of any sales and use tax ordinance adopted under this part shall impose a complementary tax upon the storage, use or other consumption in the county of tangible personal property purchased from any retailer for storage, use or other consumption in the county. That tax shall be at the rate of 1 1/4 percent of the sales price of the property whose storage, use or other consumption is subject to the tax and shall include: [¶] (a) Provisions identical to the provisions contained in Part 1 (commencing with Section 6001), other than Section 6201 insofar as those provisions relate to the use tax, except that the name of the county as the taxing agency enacting the ordinance shall be *7 within the county wishing to participate must adopt an ordinance conforming to the requirements of the Bradley-Burns Act and must include, in pertinent part: “(1) A provision imposing a tax for the privilege of selling tangible personal property at retail upon every retailer in the city at the rate of 1 percent or less of the gross receipts of the retailer from the sale of all tangible personal property sold by that person at retail in the city and a use tax of 1 percent or less of purchase price upon the storage, use or other consumption of tangible personal property purchased from a retailer for storage, us or consumption in the city. [¶] (2) Provisions identical to those contained in Part 1 (commencing with Section 6001), insofar as they relate to sales and use taxes, except that the name of the city as the taxing agency shall be substituted for that of the state (but the name of the city shall not be substituted for the word ‘state’ in the phrase ‘retailer engaged in business in this state’ in Section 6203 nor in the definition of that phrase in Section 6203) and that an additional seller’s permit shall not be required if one has been or is issued to the seller under Section 6067. [¶] (3) A provision that all amendments subsequent to the effective date of the enactment of Part 1 (commencing with Section 6001) relating to sales and use tax and not inconsistent with this part, shall automatically become a part of the sales and use tax ordinance of the city.” (§ 7202, subds. (h)(1), (2), & (3); see also Cal. Code Regs., tit. 18, § 1802.) All cities and counties in California have enacted ordinances conforming to the Bradley-Burns Act.
Section 7205, enacted in 1955, was amended in 1961, 1998, and 2005. The current statute provides in relevant part: “For the purpose of a sales tax imposed by an substituted for that of the state . . . . [¶] (b) A provision that all amendments subsequent to the date of such ordinance to the provisions of the Revenue and Taxation Code relating to the use tax and not inconsistent with this part shall automatically become a part of the ordinance. [¶] (c) A provision that the storage, use or other consumption of tangible personal property, the gross receipts from the sale of which has been subject to sales tax under a sales and use tax ordinance enacted in accordance with this part by any city and county, county, or city in this state, shall be exempt from the tax due under this ordinance. . . .” The original statute read, in pertinent part: “All retail sales for the purpose of
this part shall be presumed to have been consummated at the place of business of the *8 ordinance adopted pursuant to this part, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his or her agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination.” (§ 7205, subd. (a).)
In 1955, the Report on Assembly Bill No. 3111 stated that for the purposes of this bill, “all retail sales are to be presumed to have been consummated at retailer’s place of business, unless property sold is delivered by retailer to out-of-state destination or to common carrier for delivery thereto.” The 1961 amendment changed the provision “that all retail sales are, generally, presumptively consummated at retailer’s place of business, to provision that for sales tax purposes all retail sales are so consummated.” (Assem. Bill No. 2426, Mar. 28, 1961.) SBE’s Acting Secretary, Harry Say, in a letter dated June 16, 1961, to Governor Edmund G. Brown’s legislative secretary explained: “Section 7205 of existing law sets forth the place of sale for purposes of local sales tax and therefore determines which city or county is entitled to the tax on a particular sale. [The amendments to section 7205] clarif[ies] the wording so that there shall be no doubt as to the place of sale.”
The revenue from a local sales tax is allocated to the city where the sale occurred. SBE allocates the revenue for a local use tax to the county where the merchandise is delivered, and distributed through a “countywide pool” to all of the jurisdictions in that county.
Facts and Proceedings Below
The relevant facts are undisputed. In the mid-1980’s or early 1990’s, a number of cities retained a specialist tax correction service to seek a correction and reallocation of the local sales and use taxes and they filed petitions with SBE (the mass appeal). The retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for deliver to an out-of-state destination. . . .” (Former § 7205.) The presumption of consummation at the retailer’s place of business, which was thought to create ambiguity, was eliminated by the Legislature in 1961.
transactions at issue involved sales negotiated at places of business in California cities and the purchased goods were shipped from out of state directly to consumers in California. It was alleged, among other things, that a transaction did not have to be subject to the state sales tax in order for the local sales tax to be allocated directly to the place of business negotiating the sale.
In April 2001, an SBE hearing officer issued a Decision and Recommendation rejecting the mass appeal. The Decision and Recommendation stated that the local sales tax could be allocated directly to the registered place of business where the sale was negotiated only if the transaction was subject to the state sales tax. It concluded that application of the sales tax required both local participation by an office of the seller and transfer of title in California.
The Decision and Recommendation was appealed to SBE’s Board Management, and the appeal was denied in January 2004. An application for a hearing before SBE’s Board Members was filed in 2004. In 2010, SBE denied the petitions for reallocation of the local tax.
Meanwhile, on February 20, 2009, prior to SBE’s filing its final decision on the mass appeal, the City of South San Francisco filed a petition for writ of mandate and, on the same day, the Cities of Alameda, Irvine, Newport Beach, Roseville, San Ramon, and Santa Fe Springs also filed a petition for writ of mandate. The two petitions alleged that The City of Brisbane (Brisbane) also filed a petition for writ of mandate seeking to invalidate Regulation 1803, and the appeal in this companion case is City of Brisbane v. California State Board of Equalization, A137185 ( Brisbane case). On January 8, 2013, we issued an order consolidating the City of South San Francisco v. State Board of Equalization , A137173 ( South San Francisco case), Brisbane v. State Board of Equalization , A137185, and City of Alameda v. State Board of Equalization, A137186 ( Alameda case) for purposes of preparing a single record, oral argument, and decision. The South San Francisco and Alameda cases were briefed together and separate briefs were filed in the Brisbane case.
The Brisbane case has facts and issues unique to it and, on September 15, 2014, we vacated our order to consolidate oral argument and the decision as it relates to the Brisbane case. We did not vacate that order as it relates to the South San Francisco and Alameda cases.
SBE had improperly distributed local sales tax revenues from transactions involving sales negotiated in these cities “and fulfilled by shipment of merchandise from out of state.” SBE’s error, according to the petitions, was in treating this revenue as local “use” tax revenue, which went to the county to be distributed through a countywide pool, rather than local “sales tax” revenue, which went directly to the city where the retailer was located. SBE’s treatment of the revenue was, according to the petitions, contrary to the Bradley-Burns Act.
All of the cities and counties in California received notice of the three petitions filed. The City of El Segundo (El Segundo) filed a complaint in intervention in support of the City Petitioners. The City of Alhambra (Alhambra) and just under 90 other jurisdictions intervened on the side of SBE. On April 11, 2011, the trial court granted the motions to intervene.
The two cases in this appeal and the Brisbane case, which were never consolidated in the trial court, were heard together in a bench trial. The parties stipulated to the facts. The court directed SBE to present testimony concerning the burden of applying City Petitioners’ requested relief retroactively, and one witness testified on this issue.
The superior court filed its 78-page Final Statement of Decision on July 31, 2012. The court found Regulation 1803 to be invalid but it applied its ruling prospectively only. 6 The court filed its judgments on the petitions for writ of mandate on September 18, 2012. 7
On September 18, 2012, the court issued a supplement to its Final Statement of Decision. In its supplemental decision, the court considered and rejected SBE’s argument that the court’s ruling was limited to the situation where the California retailer had a single place of business. The court filed five judgments: Three judgments were entered on the three
separate petitions and two were on behalf of El Segundo.
SBE and 86 interveners filed timely notices of appeal from the judgments. City Petitioners and Intervener El Segundo also filed timely notices of appeal from the judgments.
DISCUSSION
I. The Issues and Standard of Review
The parties agree that the transactions at issue involve sales negotiated at a retailer in a California city and, at the time of the sale, the goods were physically located out of state and shipped directly from the out-of-state location to a consumer in California. SBE maintains that these transactions were subject to both a state and local use tax under both the State Tax Law (§ 6001 et seq.) and the Bradley-Burns Act (§ 7200 et seq.), which authorizes imposition of local sales and use taxes by counties and cities. City Petitioners do not dispute that a state use tax applies to these transactions under the State Tax Law but assert that the Bradley-Burns Act dictates when local taxes apply and the Bradley- Burns Act mandates that these transactions are subject to a local sales tax.
As earlier noted, Regulation 1803 provides that the local sales tax applies only when the state sales tax applies and the local use tax applies only when the state use tax applies. In general, SBE imposes the state sales tax when a local retailer participates in the transaction and title transfers to the purchaser in California; otherwise, the state use A few cities/counties did not join in the appeal. The following cities and counties intervened on the side of SBE and appealed the judgment: the Cities of Alhambra, Aliso Viejo, Anderson, Apple Valley, Arcadia, Azusa, Baldwin Park, Banning, Bell Gardens, Bellflower, Benicia, Burbank, Calimesa, Carson, Cathedral City, Cerritos, Claremont, Colton, Commerce, Corona, Costa Mesa, Covina, Dublin, El Centro, Elk Grove, Fountain Valley, Gonzales, Huron, Imperial Beach, Industry, Irwindale, Laguna Hills, Laguna Niguel, La Habra, La Palma, Lake Forest, Lakewood, Livermore, Loma Linda, Marina, Merced, Montclair, Moreno Valley, Morro Bay, Mountain View, Napa, Oakley, Oceanside, Oxnard, Pacifica, Paramount, Patterson, Pinole, Placentia, Placerville, Pleasant Hill, Pleasanton, Rancho Cucamonga, Rancho Mirage, Rancho Santa Margarita, Redlands, Redondo Beach, Riverside, Rosemead, San Carlos, San Dimas, San Francisco, San Joaquin, San Luis Obispo, San Pablo, San Rafael, Seaside, Signal Hill, Solana Beach, South Lake Tahoe, Sunnyvale, Taft, Temple City, Upland, Vacaville, Vallejo, Yorba Linda, and Yreka and the Counties of Placer, San Francisco, Riverside, and San Mateo.
tax is applied. (See Cal. Code Regs., tit. 18, §§ 1620, subds. (a)(1), (a)(2)(A) & (b); 1628, subd. (b)(3)(D).) SBE maintains that the Bradley-Burns Act, including Revenue and Tax Code section 7205, subdivision (a), is silent regarding when a local sales tax should apply and therefore the State Tax Law is incorporated into the Bradley-Burns Act under section 7202, subdivisions (h)(2) and (3). The State Tax Law defines a sale as “any transfer of title” (Rev. & Tax Code, § 6006, subdivision (a)), but the Revenue and Taxation Code does not specify when transfer of title occurs. Therefore, SBE uses the CUCC to determine the point in time when title transfers.
City Petitioners contend that section 7205, subdivision (a) specifies that the local sales tax applies to all transactions negotiated by a retailer in a California city regardless where or when title passes. According to them, the State Tax Law is inconsistent with section 7205, subdivision (a), and cannot be incorporated into the Bradley-Burns Act. (See § 7202, subd. (h)(3).) The trial court agreed with City Petitioners’ construction of section 7205, subdivision (a), and concluded that Regulation 1803 is invalid.
The first question raised by this appeal is the interpretation of section 7205,
subdivision (a), which presents a question of law subject to de novo review. (
Phillips,
Spallas & Angstadt, LLP v. Fotouhi
(2011)
The second question is SBE’s use of the CUCC to determine when title passes in
light of the Revenue and Taxation Code’s silence on this issue. “Where a statute leaves
room for discretion, a challenger must show the official acted arbitrarily, beyond the
bounds of reason or in derogation of the applicable legal standards.” (
California
Correctional Supervisors Organization, Inc. v. Department of Corrections
(2002) 96
*13
Cal.App.4th 824, 827.) We therefore must consider whether City Petitioners
demonstrated that SBE abused its discretion by using the CUCC. (See
California
Correctional Peace Officers Assn. v. State Personnel Bd.
(1995)
II. The Construction of Section 7205, Subdivision (a)
A. Section 7205, Subdivision (a) Does Not Specify When a Sales Tax Applies
SBE argues that section 7205, subdivision (a) of the Bradley-Burns Act, which we reiterate below, does not determine whether a sale is subject to a local sales tax because, as made clear by the prefatory language in this statute, this statute applies only after SBE has concluded that the transaction is subject to a sales tax.
Our principal task in interpreting a statute is to determine the Legislature’s intent,
giving effect to the law’s purpose. (
In re Greg F.
(2012)
When interpreting statutes, courts should give meaning to every word of the measure and avoid constructions that would render any word or provision surplusage. ( California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634.) “An interpretation that renders statutory language a nullity is Section 7205, subdivision (a) reads: “(a) For the purpose of a sales tax imposed by an ordinance adopted pursuant to this part, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his or her agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from those sales shall include delivery charges, when those charges are subject to the state sales and use tax, regardless of the place to which delivery is made.”
obviously to be avoided.” (
Williams v. Superior Court
(1993)
We agree with SBE that the prefatory language of the statute––“For the purpose of a sales tax imposed” by an ordinance adopted pursuant to the Bradley-Burns Act––limits the application of section 7205, subdivision (a) to transactions already determined by SBE to be subject to a sales tax under applicable law. (See discussion at pages 21-24 in Part III., post .) One of the definitions of “purpose,” when that word is used as a noun, is “the reason why something is done or used” or “the aim or intention of something.” (Merriam-Webster Dictionary, <www.meriam-webster.com/ dictionary/com>.) For the purpose of something indicates that it is the reason for which something is being done or created or for which something exists. (See Oxford Dictionaries, <www.oxforddictionaries.com/us/definition/american_english/purpose>.) The plain meaning of the words in this statute is that for those situations where a sales tax applies, the retail sales are consummated at the place of business of the retailer unless the item is shipped out of state. (§ 7205, subd. (a).) Furthermore, the prefatory language in section 7205, subdivision (a) is in the past tense, which supports SBE’s interpretation that this statute applies to those situations where the law has imposed a sales tax.
The trial court’s indifference to the prefatory language and its limiting effect on
the scope of the statute transgresses the fundamental principle “that courts must strive to
give meaning to every word in a statute and to avoid constructions that render words,
phrases, or clauses superfluous.” (
Klein v. United States America
(2010)
The purpose of section 7205, subdivision (a) is not to dictate whether a sales tax applies, as City Petitioners maintain, but where the sale was consummated if a local sales tax is applicable; that is, the statute sets forth a place of sale rule for determining which city should receive the sales tax revenue generated by a particular sale. For example, if the retailer has several businesses in California and the item purchased is physically located at a business or warehouse in a California city different from where the purchase was made, section 7205, subdivision (a) directs that the local sales tax be allocated to the city where the purchase was consummated.
The view of the trial court and City Petitioners that
City of Pomona v. State Board
of Equalization
(1959)
City of Pomona, supra,
allocate the receipts of each such department to the city in which the department is located.” ( Id. at p. 312 . )
To the limited extent that City of Pomona is relevant, it is consistent with our construction of section 7025, subdivision (a), because it confirms that the purpose of the statute is simply to determine which city is entitled to the revenue from the local sales tax, 11 not whether a local sales tax is applicable. 12
City Petitioners stress that sales taxes are imposed on retailers for the privilege
of selling tangible personal property at retail and, quoting
City of Pomona,
they point out
that they are “ ‘not a tax on the sale or because of the sale but . . . an excise tax for the
privilege of conducting a retail business measured by the gross receipts from sales.’ ”
(
City of Pomona, supra,
The passage in City of Pomona just quoted does not support City Petitioners’ argument. Immediately before the portion they quote, the City of Pomona court stated, “The Bradley-Burns Act provides that ‘the sales tax portion of any sales and use tax ordinance adopted under this part shall be imposed for the privilege of selling tangible personal property at retail . . .’ ” ( City of Pomona, supra, 53 Cal.2d at p. 309), making it clear that both the sales and use tax were imposed for the privilege of selling tangible personal property at retail. The trial court’s ruling also relied on a Virginia Supreme Court decision,
Commonwealth Dept. of Taxation v. Blanks Oil Co.
(1998)
Blanks Oil is not helpful to City Petitioners because it did not involve a sale where the purchased item was physically located outside the State of Virginia. Since the sales at issue occurred in Virginia, the court applied the local sales tax law to determine the place of sale. Similarly, here, SBE uses the Bradley-Burns Act to determine which city is entitled to the sales tax for those sales where title passes in the State of California.
City Petitioners also unwarrantedly rely upon the last sentences in section 7205, subdivision (a), 13 section 7205, subdivision (b)(2), 14 and Regulation 1628 as supporting their argument that a local sales tax applies whenever a sale is negotiated in a California city. But the last sentence in section 7205, subdivision (a) refers to delivery charges, 15 subdivision (b)(2) of section 7205 concerns the sale of jet fuel, and Regulation 1628 16 13 City Petitioners quote the following language at the end of section 7205, subdivision (a): “The gross receipts from those sales shall include delivery charges, when those charges are subject to the state sales and use tax, regardless of the place to which delivery is made.” They maintain that the Legislature directly tied state sales and use tax to delivery charges and since the Legislature did not do that with the place of sale rule in this statute, the Legislature must have intended the State Tax Law to apply only to delivery charges. Contrary to City Petitioners’ assertion, as already discussed, the first sentence in the statute specifically connects the home sale rule to state taxes when it states, “For the purpose of a sales tax imposed . . . .” (§ 7205, subd. (a).)
14 Section 7205, subdivision (b)(2) reads: “In the case of a sale of jet fuel, the place at which the retail sale of that jet fuel is consummated for the purpose of a sales tax imposed by an ordinance adopted pursuant to this part is the point of the delivery of that jet fuel to the aircraft.” City Petitioners assert without providing any analysis that it is significant that this statute provides that the place of sale for jet fuel for local sales taxes is the point when the fuel is delivered to the aircraft. This provision sets forth a place of sale rule for determining which city is entitled to the local sales tax from the sale of jet fuel. The place of sale rule for determining which city is entitled to the revenue for the sale of jet fuel under the Bradley-Burns Act differs from the place of sale rule under this Act for the retail sale of tangible personal property. Section 7205, subdivision (b)(2) is not helpful to our interpretation of section 7205, subdivision (a). Delivery charges are treated differently from the sale of tangible personal
property. “In California, . . . , separately stated charges for specified transportation costs
of goods are statutorily exempted from sales and use tax. (§§ 6011, subd. (c)(7), 6012,
subd. (c)(7).) Transportation charges are regarded as separately stated ‘only if they are
separately set forth in the contract for sale or in a document reflecting that contract,
issued contemporaneously with the sale, such as the retailer’s invoice.’ (Cal. Code Regs.,
tit. 18, § 1628, subd. (a).)” (
Dell, Inc. v. Superior Court
(2008)
former simply specifies when title passes and is relevant for determining transportation charges when transportation costs are included in the taxable receipts, and the latter also concerns when transportation costs are part of the sales prices. Regulation 1628 comports with section 7205, subdivision (a) and provides that the city where the sale is *18 concerns transportation costs. The language City Petitioners seize upon in these provisions is therefore not germane to any issue raised by this appeal.
B. Legislative History and Policy Establish that Local Tax Law is to be Consistent with State Tax Law
The legislative history of the relevant statutes and public policy also support our interpretation of section 7205, subdivision (a). When considering whether to pass the Bradley-Burns Act in 1955 (Assem. Bill No. 3111), the Assembly Interim Committee on Revenue and Taxation prepared in January 1955 a report on its study of the “Property Tax Exemptions, Personal Property Tax Administration and Local Sales Taxes.” Exhibit III, attached to this report, with the subheading, “Resolution Re Uniform Sales Tax,” stated the following in relevant part: “ ‘Whereas, The Special Sales Tax Committee of the League Board of Directors has met with a similar committee of the California Retailers Association in an effort to solve the perplexing problems of non-uniformity of local sales taxes;’ ” be it resolved that “ ‘the board of directors of the League of California Cities cause to be presented to the 1955 Session of the Legislature of the State of California a uniform sales tax program embracing the following policy: [¶] Recognizing that the need for sales tax uniformity varies in degree throughout the State, and recognizing that the desire for additional revenue from the local sales tax source also varies throughout the State, it is suggested that complete uniformity throughout California may be achieved gradually. To accomplish this, it is recommended that: [¶] 1. Legislative authority be granted to each county to institute a sales tax of 1 percent, applicable in exactly the same manner as the state sales tax. ’ ” (Italics added.)
The Inter-Departmental Communication on Assembly Bill No. 3111, dated June 23, 1955, from Edward P. Hollingshead, Deputy Attorney General, to Governor Goodwin J. Knight, emphasized that the state and local sales and use taxes were to be substantially consummated, not the city where the delivery is made, is the place of sale for calculating the delivery charges as part of the gross receipts. This regulation does not suggest that the sale of a personal tangible item can be subject to the state’s use tax concomitantly with being subject to the local sales tax.
the same. The communication stated: “Under the provisions of this bill, the counties and cities of this state are authorized to adopt by action of their boards of supervisors a sales and use tax substantially the same as the State sales and use tax imposed by Part 1, Division 2, of the Revenue and Taxation Code. Generally, the bill sets up a list of requirements which must be met by a city or county in enacting a sales and use tax ordinance, including provisions requiring conformity with the State Sales and Use Tax Law . . . .” (Italics added.)
Additionally, the legislative history of section 7205, subdivision (a) conflicts with
the trial court’s interpretation. The Legislature amended section 7205 in 1961, 1998, and
2005. In 1956, subdivision (a) of SBE’s Ruling 2203 stated, “In any case in which state
sales tax is applicable . . . , state-administered local sales tax is also applicable . . . [and]
[i]n any case in which state sales tax is inapplicable . . . , state-administered local sales
tax is also inapplicable.” Subsequently, in 1970, Regulation 1803 replaced Ruling 2203.
The Legislature never overturned or mentioned Ruling 2203 when it amended section
7205 in 1961; nor did the Legislature object to Regulation 1803 in 1998 and 2005 when it
again amended section 7205. “It is assumed that the Legislature has in mind existing
laws when it passes a statute. [Citations.] ‘The failure of the Legislature to change the
law in a particular respect when the subject is generally before it and changes in other
respects are made is indicative of an intent to leave the law as it stands in the aspects not
amended.’ [Citations.]” (
Estate of McDill
(1975)
City Petitioners’ position is also inconsistent with the clear policy of the Bradley-
Burns Act. They claim the policy of the Act was to promote uniformity among cities and
counties, not uniformity between the state and local jurisdictions. (See
City of San
Joaquin, supra,
9 Cal.App.3d at pp. 369-370.) But the plain language of the Bradley-
Burns Act shows that its policy and purpose were to create the uniform application of
taxes at
both
the state and local level. Subdivisions (h)(2) and (3) of section 7202 require
*20
that the local ordinances be “identical” to the state sales and use tax law and all
amendments “not inconsistent” with the Bradley-Burns Act “automatically become a part
of the sales and use tax ordinance of the city.” No provision of the Bradley-Burns Act
defines a sale and the Act is silent on whether the location of the property has any bearing
on the place of sale. Indeed, the Bradley-Burns Act did not need to address these issues
because the Legislature expressly provided that the State Tax Law, which defines a sale
and sets forth the place of sale rule as where the property is located, is incorporated into
the Bradley-Burns Act. (See also
Geiger v. Board of Supervisors
(1957)
The trial court believed SBE’s interpretation of the Bradley-Burns Act is contrary to public policy because it is “unfair to cities that provide the infrastructure to support local sales but do not receive the sales tax revenues clearly contemplated by the” Bradley-Burns Act. The court failed to acknowledge, however, that the transactions at issue were not exempted from any tax by SBE’s interpretation, but were subjected to a local use tax. (See § 7203 [“The use tax portion of any sales and use tax ordinance adopted under this part shall impose a complementary tax upon the storage, use or other consumption in the county of tangible personal property purchased from any retailer for storage, use or other consumption in the county”].) The trial court seemed unaware the local use tax is also part of the Bradley-Burns Act and the local use and local sales taxes are mutually exclusive and complementary. Applying the local use tax to the transactions at issue in this appeal clearly furthers the purpose of the Bradley-Burns Act. City Petitioners maintain that SBE’s interpretation of the Bradley-Burns Act ignores and denies the independent authority of cities and counties to tax selling activities conducted within their boundaries, as recognized by section 7202, subdivision (h).
Accordingly, we conclude that section 7205, subdivision (a) sets forth a place of sale rule to determine which city is entitled to the revenue from the local sales tax for those transactions that are subject to a sales tax. This provision is silent about whether a sales tax should be imposed.
III. Determining When a Sales or Use Tax Applies
A. SBE Uses Section 6006, Subdivision (a), Section 6010.5, and the CUCC
When determining whether a sales or use tax should apply to a transaction, SBE applies both the State Tax Law and the CUCC. Under the State Tax Law, a “ ‘sale’ ” is “[a]ny transfer of title . . . for a consideration” (§ 6006, subd. (a)), and the place of the sale is where the property is physically located at the time of sale (§ 6010.5). Since these statutes are not inconsistent with the correct interpretation of section 7205, subdivision (a), these two statutes in the State Tax Law become part of the Bradley-Burns Act under section 7202, subdivisions (h)(2) and (3).
As noted earlier, neither the Bradley-Burns Act nor the State Tax Law addresses when transfer of title occurs. We therefore must consider whether SBE abused its discretion by using section 2401, subdivision (2), of the CUCC to determine that issue. The State Tax Law defines a sale as transfer of title (§ 6006, subd. (a)), but does not set forth any rule for determining the point at which title passes. Since the sales at issue in this appeal were negotiated at retailers in a California city but had to be shipped to the SBE’s interpretation of the Bradley-Burns Act does not prevent the city or county from collecting local sales and use taxes pursuant to the Bradley-Burns Act. Cities and counties, however, may not impose taxes that are contrary to the law and no statute authorizes cities and counties to impose a local sales tax on those transactions that are subject to a state use tax under the State Tax Law. Section 7202, subdivision (h)(2) provides: “Provisions identical to those
contained in Part 1 (commencing with Section 6001), insofar as they relate to sales and use taxes . . . .” Subdivision (h)(3) states that “all amendments subsequent to the effective date of the enactment of Part 1 (commencing with Section 6001) relating to sales and use tax and not inconsistent with this part, shall automatically become a part of the sales and use tax ordinance of the city.” (§ 7202, subd. (h)(3).) *22 California consumer from an out-of-state location, title passed out of state under section 2401, subdivision (2) of the CUCC, and the use tax applies.
In rejecting SBE’s use of the CUCC, the trial court stressed that these more
general statutes could “not displace or affect the dispositive place of sale rule” set out in
the more specific statute, section 7205, subdivision (a). We disagree with this reasoning
because it attributes a meaning to the more specific statute that it does not possess. The
court’s reasoning also failed to accord SBE’s decision to resort to the CUCC the
deference it is due. (Evid. Code, § 664; Gov. Code, § 11343.6;
Hahn v. State Board of
Equalization
(1999)
Courts have consistently used section 2401 of the CUCC to determine when title
passes between sellers and buyers. (See, e.g.,
California State Electronics Assn. v. Zeos
Internat. Ltd.
(1996)
City Petitioners respond that the cases relied upon by SBE (see, e.g., Associated Beverage Co. v. Board of Equalization, supra, 224 Cal.App.3d at pp. 208-209) involved As stated above, unless the contract specifies something to the contrary, “title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods . . . . [¶] (a) If the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but [¶] (b) If the contract requires delivery at destination, title passes on tender there.” (Cal. U. Com. Code, § 2401, subd. (2).)
sales for the purposes of the state use tax and did not involve place of sale under the
Bradley-Burns Act.
20
That is true but the cases SBE cites demonstrate the relevance of
passage of title to determining the applicability of the sales tax. Moreover, City
Petitioners have cited no authority for their theory that passage of title should be deemed
irrelevant to determining whether a local sales tax applies.
21
More significantly,
City Petitioners argue that before the CUCC was enacted courts applied the
sales tax to sales by California retailers when the goods were imported from out of state.
City Petitioners rely on
Diebold, Inc. v. State Board of Equalization
(1959) 168
Cal.App.2d 628 and
Select Base Materials v. Board of Equal.
(1959)
Unlike the sales at issue in this appeal, the contracts in
Select Base Materials v.
Board of Equal., supra,
language in Cedars-Sinai Medical Center v. State Bd. of Equalization (1984) 162 Cal.App.3d 1182, 1188. In Cedars-Sinai , the medical center bought medical equipment from vendors, paid the sales tax due, and subsequently transferred title to the equipment to leasing companies under a leaseback arrangement. The court held that a sale and leaseback of medical equipment was a structured financing arrangement and not a “sale” subject to sales tax. The court construed the leaseback transactions as an alternative financing device and ultimately concluded “[t]here was but one sale of the equipment— by the vendors to plaintiff [medical center].” ( Id. at p. 1189.) The issue before us is not whether a sale did in fact occur and the Cedars-Sinai court never suggests that passage of title is irrelevant to determining where the sale occurs.
Associated Beverage Co. confirms that SBE properly used the CUCC to determine when a sale occurs for the purposes of deciding whether to apply a sales or use tax. B. SBE Did Not Abuse Its Discretion By Using the CUCC to Determine Passage of Title
Section 6006, subdivision (a) provides that a sale takes place upon the passage of
title, but neither the Bradley-Burns Act nor the State Tax Law specifies when title passes.
This silence leaves room for SBE to exercise discretion in making that necessary
determination, provided only that it does so in a rational manner consistent with all
pertinent provisions of the Revenue and Taxation Code. The authority City Petitioners
cite provides no reason to think title is irrelevant when determining whether to apply a
sales tax, or that passage of title should not occur at the time and place specified in
section 2401, subdivision (2) of the CUCC; namely, that “time and place at which the
seller completes his performance with reference to the physical delivery of the goods”
unless the contract specifies otherwise. The CUCC provision at issue is fully consistent
with the scheme presented by the State Tax Law and the Bradley-Burns Act. As earlier
pointed out, where, as here, “a statute leaves room for discretion, a challenger must show
the official acted arbitrarily, beyond the bounds of reason or in derogation of the
applicable legal standards.” (
California Correctional Supervisors Organization, Inc. v.
Department of Corrections, supra,
City Petitioners claim that in its Ruling 55 (former Cal. Admin. Code, tit. 18, § 2015), SBE applied the sales tax to sales by California retailers when the goods were imported from out of state. Ruling 55 did state that a sales tax would be assessed on transactions involving shipments from out of state in those situations where the retailer’s office in California participated by receiving or distributing the goods, but it did not alter the rule that the sales tax did not apply if title to the goods passed out of state. Ruling 55 did not state that out-of-state shipments to a consumer in California were subject to the sales tax or that the passage of title was irrelevant to the application of a sales tax. Ruling 55 did not address whether title to goods passed inside or outside California.
IV. Conclusion
City Petitioners did not meet their burden of proving that Regulation 1803 is
invalid. (See
California Correctional Peace Officers Assn. v. State Personnel Bd., supra,
We do not address SBE’s argument that the trial court’s interpretation of the relevant statutes in the Revenue and Taxation Code violates the commerce clause, because we have concluded that the trial court erred in its construction of the statutes. Since we are reversing the judgments and City Petitioners are not entitled to any relief, we need not, and do not, address the merits of their arguments that they are entitled to retroactive relief.
DISPOSITION
The judgments invalidating Regulation 1803 and directing writs of mandate to be issued are reversed. The matters are remanded to the trial court for entry of new judgments consistent with this opinion. SBE and the 86 interveners on the side of SBE are awarded the costs of appeal.
We also do not consider the merit of various other contentions by SBE including that the trial court erred in placing the burden of proving Regulation 1803 is valid on SBE and in finding Regulation 1803 was not quasi legislative in nature.
_________________________ Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Siggins, J.*
A137173, A137186
* Associate Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Court: San Francisco Superior Court Trial Judge: Hon. James Robertson, II Attorneys for Plaintiff and Appellant: Pearson, Simon, Warshaw & Penny LLP
George S. Trevor
William J. Newsom Holland & Knight LLP Charles L. Coleman, III Adanna M. Love
Albin C. Koch Attorneys for Interveners: Trombadore Gonden Law Group LLP
J. Thomas Trombadore David M. Gonden Wendel, Rosen, Black & Dean Llp Leslie A. Hausrath R. Zachary Wasserman Thiele R. Dunaway Attorneys for Defendant and Appellant: Kamala D. Harris
Attorney General of California Paul D. Gifford
Senior Assistant Attorney General Joyce E. Hee
Supervising Deputy Attorney General Kristian D. Whitten Deputy Attorney General Karen Y.Yiu
Deputy Attorney General