8X8, Inc. v. United States

• Decision Date: 27 April 2017
• Docket Number: 2016-1959
• Citation: 854 F.3d 1376
• Parties: 8X8, INC., Plaintiff–Appellant v. UNITED STATES, Defendant–Appellee
• Court: U.S. Court of Appeals — Federal Circuit

854 F.3d 1376

8X8, INC., Plaintiff–Appellant

v.UNITED STATES, Defendant–Appellee

2016-1959

United States Court of Appeals, Federal Circuit.

Decided: April 27, 2017

H. Christopher Bartolomucci , Kirkland & Ellis LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Christopher George Michel .

Judith Ann Hagley , Tax Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Teresa E. McLaughlin, Caroline D. Ciraolo .

Before Wallach, Chen, and Hughes, Circuit Judges.

Wallach, Circuit Judge.

Appellant 8x8, Inc. ("8x8") sued Appellee the United States ("Government") in the U.S. Court of Federal Claims, seeking a refund of more than $1 million in Federal Communications Excise Tax ("FCET" or "excise tax"). The parties subsequently filed cross-motions for summary judgment, and the Court of Federal Claims denied 8x8's Motion and granted the Government's Cross-Motion, thereby denying 8x8's claim for a refund of the FCET remitted. See 8x8, Inc. v. United States , 125 Fed.Cl. 322, 331 (2016).

8x8 appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012). We affirm.

BACKGROUND

I. 8x8's VoIP Services

8x8 is a provider of local and long-distance telephone services over a broadband internet connection via Voice over Internet Protocol ("VoIP"). This service allows customers to make and receive calls over the internet via a digital terminal adapter ("DTA"), which contains 8x8's proprietary firmware and software. J.A. 246. Part of 8x8's VoIP service included the use of other transmission services from Level(3) and Global Crossing—i.e., traditional telecommunications carriers. J.A. 246. The customer's call would be switched over to Level(3)'s or Global Crossing's traditional lines and circuits when necessary.¹ J.A. 365–66. However, 8x8 did not pay any FCET to Level(3) or Global Crossing because it provided them with an "exemption certificate [ ]," which "represent[ed] that [8x8] was a provider of telephone service and was exempt from the excise tax in [I.R.C.] § 4253 [ (2006) ]."² J.A. 246.

Subscribing to a plan offered by 8x8 included several steps. First, customers seeking access to 8x8's VoIP service needed to purchase a DTA. J.A. 246. After making the necessary physical connections to the DTA, the customer then "went to 8x8's website and signed up for a subscription plan," which included "accept[ing] 8x8's Terms and Conditions of Service." J.A. 247. These Terms and Conditions provided that 8x8 would collect the FCET from its customers and remit the FCET to the Internal Revenue Service ("IRS") for the customers' use of 8x8's VoIP domestic telephone service. See J.A. 259 ("8x8 will ... bill all charges invoiced to End User's account.... Such charges shall include ... monthly service fees, ... toll charges, taxes and any other applicable charges."), 260 ("Prices for the Services do not include any ... sales, use, value added, excise, federal, state, local, public utility or other similar taxes. All such taxes shall be paid by the End User and will be added to any amounts otherwise charged[,] unless [the] End User provides 8x8 with an appropriate exemption certificate."). The subscription plans included (1) an unlimited local and long distance plan permitting calls that were within "reasonable personal use" for a set fee, J.A. 247; or (2) plans for a set amount of minutes at a set price, J.A. 246. After selecting a subscription plan, "the customer would provide 8x8 with a credit card which would be used to pay all charges, fees, and taxes for the 8x8 service."³ J.A. 247. Finally, "the customer would be provided with a 10 digit code that would be used to activate the 8x8 service." J.A. 247.

II. Relevant History of the FCET

8x8's VoIP services were subject to the FCET. J.A. 246; see I.R.C. § 4251(a)(1) (imposing the FCET on "communications services"); id. § 4251(b)(1) (defining "communications services"). Beginning in 2005, several appellate courts held that § 4251 did not permit the IRS to tax telephone services that billed customers based on a fixed per-minute, non-distance-sensitive rate. See, e.g. , Reese Bros., Inc. v. United States , 447 F.3d 229, 234 & n.2 (3d Cir. 2006) (collecting cases).

In response to these rulings, the IRS ceased collecting the FCET on "amounts paid for time-only service." I.R.S. Notice 2006-50, § 1(a), 2006-25 I.R.B. 1141 ("2006 Notice")⁴ ; see I.R.S. Notice 2007-11, 2007-5 I.R.B. 405 (clarifying and modifying the 2006 Notice). The IRS also stated that VoIP services were non-taxable, 2006 Notice, § 3(a), (d), and established a process for taxpayers to seek a refund of the FCET that had been exacted on non-taxable services during the period between February 2003 and August 2006, id. § 5(d). Finally, the 2006 Notice stated that a "collector"⁵ can request a refund of the FCET collected from customers during the relevant period if the collector either (1) "establishes that it repaid the amount of the tax to the person from whom the tax was collected"; or (2) "obtains the written consent of such person to the allowance of such credit or refund." Id. § 5(d)(4)(i); see I.R.C. § 6415(a) (similar).

8x8 subsequently filed a refund claim with the IRS for the FCET imposed between March 2003 to July 2006. J.A. 245–46. After its refund claim was denied in part, 8x8 exhausted its administrative remedies with the IRS. J.A. 232–42.8x8 then sued the Government in the Court of Federal Claims, seeking a refund of more than $1 million for the FCET remitted to the IRS. J.A. 19–29. The Court of Federal Claims concluded that 8x8 lacked standing and granted the Government's motion for summary judgment. 8x8 , 125 Fed.Cl. at 330–31.

DISCUSSION

The parties have stipulated to the material facts of this case. See J.A. 245–48. The legal issue in this appeal is whether 8x8 is entitled to claim a refund of the FCET. After articulating the applicable standard of review and legal framework, we address this issue below.

I. Standard of Review and Legal Framework

We review the Court of Federal Claims's "grant of summary judgment de novo." Frankel v. United States , 842 F.3d 1246, 1249 (Fed. Cir. 2016) (citation omitted). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Court of Federal Claims Rule 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine dispute exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that "might affect the outcome" of the case. Id. The party seeking summary judgment has the initial burden of establishing that there is no genuine dispute as to any material fact. See Celotex , 477 U.S. at 323, 106 S.Ct. 2548.

II. The Court of Federal Claims Did Not Err in Granting Summary Judgment in Favor of the Government

The Court of Federal Claims stated that "the material facts have been stipulated by the parties and are not in dispute" and that the "sole issues before the [c]ourt are legal ones." 8x8 , 125 Fed.Cl. at 327. The Court of Federal Claims then moved to the legal issue and concluded that 8x8 lacked standing to seek a refund because it did not pay the FCET; it only collected the FCET from paying customers and then remitted that money to the IRS. See id . at 327–28. In reaching this conclusion, the Court of Federal Claims noted "the undisputed facts establish that 8x8 did not bear the economic burden of the taxes it remitted to IRS." Id. at 328 ; see J.A. 247 (stipulating to the language of the "TAXES" provision included in the Terms and Conditions).

8x8 argues that "under the special statutory rules governing prepaid arrangements, 8x8 is not a collector." Appellant's Br. 45. It contends that "the excise tax was ‘treated as paid,’ when 8x8 received the transfer of services from Level[ (3) ] and Global Crossing, and 8x8 was ‘the person paying for such services.’ " Id. at 46 (quoting I.R.C. § 4251(a)(2), (d)(1)(B) ). According to 8x8, it "was the ‘transferee’ _[^{6 ]} and thus the ‘person liable for the tax.’ " Id. (quoting 26 C.F.R. § 49.4251-4(d)(1) ). 8x8 further argues that I.R.C. § 6415 does not bar its refund because "8x8 is not a ‘person who collected’ excise tax," id. at 49; instead, 8x8 "paid the tax" and "pass[ed] along and separately state[d] the amount of accrued federal excise tax on its customers' bills," id. at 51. Thus, it contends that this passing along is "an utterly commonplace economic transaction in which a retailer subjected by the [G]overnment to higher costs of doing business raises customer prices." Id .

"[T]he ultimate question presented for decision, upon a claim for refund, is whether the taxpayer has overpaid his tax." Lewis v. Reynolds , 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293 (1932), modified , 284 U.S. 599, 52 S.Ct. 264, 76 L.Ed. 514 (1932) (internal quotation marks and citation omitted). To sue for a refund, "it is incumbent upon the claimant to show that the United States has money which belongs to him." Id. (internal quotation marks and citation omitted). I.R.C. § 6415 allows a "person who collected the tax and paid it" to the IRS to seek a refund only if "such person establishes ... that he has repaid the amount of such tax to the person from whom he collected it[ ] or obtains the consent of such person to the allowance of such credit or refund." I.R.C. § 6415(a).

We agree with the Court of Federal Claims that 8x8 is a collector of the FCET and, as a collector, 8x8 has failed to fulfill the necessary requirements of I.R.C. § 6415(a). The overwhelming weight of the record demonstrates 8x8's role as a collector and refutes 8x8's argument to the contrary. See J.A. 139 n.1 (IRS stating in the Notice of Proposed Adjustment that "8x8 admitted ... that it collected an...