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Wehrenberg, Inc. operated a restaurant-style concession offering hotdogs, pizza, and similar items at four of its movie theaters. Wehrenberg charged its customers the four percent state sales tax imposed by Mo. Rev. Stat. 144.202. Wehrenberg then filed a sales tax refund claim with the Director of Revenue, asserting that the concession items should have been taxed at the one percent rate set forth in Mo. Rev. Stat. 144.014. The Director and the AHC denied the claim. The Supreme Court affirmed, holding that because the food for sale at Wehrenberg's concession stands was not intended for home consumption, the one percent state sales tax rate set forth in section 144.014 did not apply to Wehrenberg's food sales.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF MISSOURI
Director of Revenue,
Petition for Review of a Decision of the Administrative Hearing Commission
Opinion issued October 4, 2011
Wehrenberg, Inc., seeks review of an Administrative Hearing Commission
(“AHC”) decision determining that the sale of food at Wehrenberg’s movie theaters is not
subject to the reduced sales tax rate for food established in section 144.014, RSMo Supp.
2010. The AHC decision is affirmed.
Wehrenberg operates twelve movie theaters in Missouri. In each theater,
Wehrenberg operates concession stands selling food and drinks. The concession items
include popcorn, nachos, candy and soda. At four theaters, Wehrenberg operates a
restaurant-style concession offering hotdogs, hamburgers, pizza, French fries, and similar
Wehrenberg charged its customers the four percent state sales tax imposed by
section 144.020. Wehrenberg then filed a sales tax refund claim with the Director of
Revenue asserting that the concession items should have been taxed at the one percent
rate set forth in section 144.014. The director and the AHC denied the claim.
Wehrenberg filed a petition for review of the AHC decision.
This Court has jurisdiction to review the AHC’s decision pursuant to Mo. Const.
article V, section 3 because the case involves construction of state revenue laws. The
AHC’s interpretation of revenue laws is reviewed de novo. DST Sys., Inc. v. Dir. of
Revenue, 43 S.W.3d 799, 800 (Mo. banc 2001). The AHC’s factual findings will be
upheld if the findings are supported by substantial evidence in the record. MFA
Petroleum Co. v. Director of Revenue, 279 S.W.3d 177, 178 (Mo. banc 2009).
Section 144.020 imposes a four percent state sales tax on the retail sale of tangible
personal property, including food. Section 144.014 imposes a one percent state sales tax
on the retail sale of “those products and types of food for which food stamps may be
redeemed pursuant to the provisions of the Federal Food Stamp Act as contained in 7
U.S.C. section 2012.” The federal food stamp program defines “food” as “any food or
food product for home consumption….” 7 U.S.C., section 2012(k). Thus, the “products
and types of food” subject to the one percent state sales tax are food items for home
consumption. There is no doubt that the food sold at the theater concession stand is for
consumption at the theater and are not sold for home consumption. Consequently, the one
percent state sales tax rate provided in section 144.014 does not apply to Wehrenberg’s
To avoid this conclusion, Wehrenberg argues that the relevant inquiry is not
whether the items are intended for home consumption, but whether items such as popcorn
or nachos are “types of food” for which food stamps may be redeemed. Wehrenberg’s
argument is premised on the assertion that section 144.014 does not incorporate the
definition of “food” utilized by the Federal Food Stamp program. This argument fails
because the plain, unambiguous language of section 144.014 links the definition of
“products and types of food” subject to the one percent sales tax to the definition of
“food” utilized by the Federal Food Stamp Act. Every word, sentence or clause in a
statute is presumed to have effect, State ex rel. Unerstall v. Berkemeyer, 298 S.W.3d 513,
519 (Mo. Banc 2009). Adopting Wehrenberg’s argument would render the reference in
section 144.014 to the Federal Food Stamp Act superfluous. Section 144.014 does not
apply to Wehrenberg’s sale of food at its concession stands.
The decision of the AHC is affirmed.
Richard B. Teitelman, Chief Justice
Russell, Breckenridge, Fischer, Stith and
Price, JJ., and Sweeney, Sp.J., concur.