Blue Buffalo Co. v. Comptroller Treasury

• Decision Date: 20 December 2019
• Docket Number: No. 495, Sept. Term, 2018,495, Sept. Term, 2018
• Citation: 243 Md.App. 693,221 A.3d 1130
• Parties: BLUE BUFFALO COMPANY, LTD. v. COMPTROLLER OF the TREASURY
• Court: Court of Special Appeals of Maryland

243 Md.App. 693

221 A.3d 1130

BLUE BUFFALO COMPANY, LTD.

v.COMPTROLLER OF the TREASURY

No. 495, Sept. Term, 2018

Court of Special Appeals of Maryland.

December 20, 2019

Argued by: Michael A. Jacobs (Daniel Z. Herbst, Reed Smith, LLP, on the brief), Philadelphia, PA, for Appellant.

Argued by: Michael J. Salem (Brian E. Frosh, Atty. Gen., on the brief), Annapolis, MD, for Appellee.

Panel: Kehoe, Leahy, Sally D. Adkins (Senior Judge, Specially Assigned), JJ.

Adkins, Sally D., J. Federal law provides immunity from state taxation to interstate corporations whose sole business in the taxing state is the solicitation of orders. 15 U.S.C. § 381(a). When the State asserts its rights to tax an interstate corporation that sells its goods within our borders, we look to the Supreme Court's decision in Wisconsin Dep't. of Revenue v. William Wrigley, Jr., Co. , 505 U.S. 214, 223, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992) for instruction as to interpreting the statute. At issue here is whether a dog food manufacturer exceeded the scope of the statutory protection when its employees performed various activities in Maryland relating to its product. Upon review, we hold that important aspects of the appellant's activities went beyond the solicitation of orders. We therefore affirm the decision of the Circuit Court for Baltimore City.

FACTUAL OVERVIEW AND PROCEDURAL POSTURE

Appellant Blue Buffalo Co., Ltd., is a Delaware corporation that is commercially domiciled in the state of Connecticut. Blue Buffalo is in the business of formulating and selling premium pet food. During 2011 and 2012 (the "Tax Years"), these products were produced by independent manufacturers located outside Maryland, shipped into the state by common carrier, and sold through national chains and local independent retailers. Blue Buffalo did not maintain any corporate office, warehouse, storeroom, or distribution facilities inside the state.

Although most of Blue Buffalo's business was conducted outside of Maryland, the corporation maintained several employees inside the state. During the Tax Years, those employees were: one Distributor Sales Manager, one Account Manager, two Regional Demo Managers, and several dozen "Pet Detectives." The parties dispute the nature, scope, and significance of these individuals' activities during the Tax Years.

Blue Buffalo's management staff was responsible for building the company's relationships with retailers and taking advantage of market opportunities. The Distribution Sales Manager regularly met with the managers of local independent retail stores to arrange bulk orders of Blue Buffalo products. Likewise, the Account Manager met with representatives of national chains that carried Blue Buffalo products—such as Pet Smart, Petco, and Tractor Supply. From time to time, both managers served as a face for Blue Buffalo in the broader community. The Distribution Sales Manager periodically attended pet-related community events, such as adoption fairs and pet walks. The Account Manager organized events in retail stores to demonstrate the advantages of Blue Buffalo's products to ultimate consumers.

Each Regional Demo Manager was chiefly responsible for recruiting, training, and managing Pet Detectives in their assigned geographic area. The Pet Detectives were on-the-ground sales representatives, stationed at retail locations where Blue Buffalo products were sold. Their primary duty was to interact with customers and encourage them to buy Blue Buffalo products from the retailer. They also advised retailers on the proper display of Blue Buffalo products and encouraged retailers to place orders when inventory was running low. The Pet Detectives would provide their Regional Demo Manager with regular reports on detailing sales, pet visits, and hours worked at each store. These reports occasionally included comments on customer interactions, product suggestions, the activities of competitors, and issues encountered on the job.

Blue Buffalo paid Maryland's corporate income tax in 2011 and 2012 for a total amount of $706,966 based on the activities of its Maryland employees. It later filed amended returns for the Tax Years to request a full refund, on the grounds that its staff were limited to the solicitation of orders, an activity protected from taxation under 15 U.S.C. §§ 381 - 384 (" Public Law 86-272"). After a hearing, the Comptroller determined that Blue Buffalo had not met its burden to show that it qualified for protection under 15 U.S.C. § 381 for the Tax Years. Blue Buffalo appealed to the Maryland Tax Court, characterizing its employees' activities as missionary sales protected by 15 U.S.C. § 381(a)(2). The Tax Court found that several of Blue Buffalo's activities served an independent business purpose, and therefore upheld the Comptroller's decision. The Circuit Court for Baltimore City affirmed, and Blue Buffalo now appeals.

DISCUSSION

Standard of Review

On appeal, we review the decision of the Tax Court, rather than the circuit court. Comptroller of Treasury v. Johns Hopkins Univ. , 186 Md. App. 169, 181, 973 A.2d 256 (2009). We may uphold a Tax Court decision only on the findings and reasons given by the Tax Court. NIHC, Inc. v. Comptroller of Treasury , 439 Md. 668, 683, 97 A.3d 1092 (2014). As the Tax Court is an adjudicatory administrative agency, its final orders are examined under the same standards of review governing other agencies. Id. at 682, 97 A.3d 1092. Findings of fact are reviewed for substantial evidence and entitled to deference if the record reasonably supports the agency's conclusion. Id. at 683, 97 A.3d 1092. Pure questions of law are reviewed without deference. Ramsay, Scarlett & Co., Inc. v. Comptroller of Treasury , 302 Md. 825, 834, 490 A.2d 1296 (1985).

Our review of the Tax Court's application of the law to the facts is generally narrow: "we will not substitute our judgment for the expertise of ... the administrative agency." Gore Enterprise Holdings, Inc. v. Comptroller of Treasury , 437 Md. 492, 503-04, 87 A.3d 1263 (2014) (cleaned up). Commensurate with this expertise, an agency's legal conclusions based on interpretations of the statutes and regulations it administers are afforded "great weight." Id. at 505, 87 A.3d 1263. This principle is limited by the "plain meaning" rule of interpretation; that is "where there is no ambiguity and the words of the statute are clear, we simply apply the statute as it reads." Frey v. Comptroller of Treasury , 422 Md. 111, 182, 29 A.3d 475 (2011) (cleaned up). Likewise, an agency's conclusion predicated on the application of case law presents "a purely legal issue uniquely within the ken of a reviewing court," and will not receive deference. Id. (internal citation omitted).

Defining Solicitation Of Orders

The Tax Court assessed Blue Buffalo's claim under the Interstate Commerce Tax Act, Public Law 86-272, as codified in 15 U.S.C. § 381. Section 381 prohibits states from taxing the net income of an out-of-state corporation whose only business inside the state during the taxable year was one of the following:

(1) the solicitation of orders by [a] person, or his representative, in [a] State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and (2) the solicitation of orders by [a] person, or his representative, in [a] State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).

15 U.S.C. § 381(a).

Congress enacted this provision to define a " ‘lower limit’ for the exercise of the state taxing power" after the Supreme Court upheld state income taxes imposed on interstate corporations based on the activities of their travelling salespeople.¹ Wisconsin Dep't. of Revenue v. William Wrigley, Jr., Co. , 505 U.S. 214, 223, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992) ; see Comptroller of Treasury v. World Book Childcraft Int'l, Inc. , 67 Md. App. 424, 432, 508 A.2d 148 (1986) ( Section 381 bars taxation unless company's activities "meet certain minimum standards"). Section 381(a)(1) protects the direct solicitation of orders by an out of state business. Section 381(a)(2) protects an activity referred to as missionary sales —solicitation of ultimate consumers on behalf of a third-party retailer, who will eventually place an order to replenish their inventory. Wrigley , 505 U.S. at 233–34, 112 S.Ct. 2447.

Although § 381 does not define "solicitation of orders," the Supreme Court has issued one decision defining the scope of these protections. In Wrigley , it upheld the imposition of Wisconsin's franchise tax on the world's largest manufacturer of chewing gum. Id. Wrigley, an international corporation based in Chicago, did not have an office or facility in Wisconsin, did not own or lease property in Wisconsin, did not process orders in Wisconsin, and was not licensed to do business in Wisconsin. Between 1973 and 1978, Wisconsin nevertheless taxed Wrigley based on the in-state income generated by its sales force. After the Wisconsin Supreme Court disallowed the tax, the Supreme Court granted the State's petition for certiorari. Id. at 219–220, 112 S.Ct. 2447.

Concluding that § 381 "covers more than what is strictly essential to making requests for purchases," the Court reasoned that the statute immunizes the entire process associated with requesting orders. Id. at 228, 112 S.Ct. 2447 (emphasis in original). Solicitation, in common parlance,² includes both "explicit verbal requests for orders" and "speech or conduct that implicitly invites an order," such as a salesperson's acclamation of the advantages and virtues of his products. Id. at 223, 112 S.Ct. 2447. Moreover, restricting the immunity to requests alone would defeat its purpose, as salespeople must be provided with...