Krispy Kreme Doughnut Corp. v. Dir. of Revenue, No. SC 91471.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: WILLIAM RAY PRICE
• Citation: 358 S.W.3d 48
• Parties: KRISPY KREME DOUGHNUT CORPORATION, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent.
• Decision Date: 20 December 2011
• Docket Number: No. SC 91471.

358 S.W.3d 48

KRISPY KREME DOUGHNUT CORPORATION, Appellant,
v.
DIRECTOR OF REVENUE, State of Missouri, Respondent.

No. SC 91471.

Supreme Court of Missouri, En Banc.

Dec. 20, 2011.

[358 S.W.3d 48]

Igor Timofeyev, Paul, Hastings, Janofsky & Walker LLP, Washington, D.C.,

[358 S.W.3d 49]

Edward F. Downey, Bryan Cave LLP, Jefferson City, for Krispy Kreme.

Jeremiah J. Morgan, Deputy State Solicitor for the Attorney General's Office, Jefferson City, for Director of Revenue.

Miriam J. Guggenheim, Covington & Burling LLP, Washington, D.C., for Retail Bakers of America and American Bakers Association, which filed a brief as friends of the Court.WILLIAM RAY PRICE, JR., Judge.I. Introduction

Missouri law provides for two sales tax rates: a standard rate of 4 percent that applies to most retail sales, see section 144.020, RSMo 2000, and a reduced rate of 1 percent that applies to some—but not all—sales of food, see section 144.014, RSMo Supp.2010. Krispy Kreme Doughnut Corporation seeks review of a decision of the Administrative Hearing Commission (“AHC”) that Krispy Kreme must collect tax at the 4–percent rate on all retail food sales at its Missouri locations.

The Court holds that “food prepared ... for immediate consumption on or off the premises” includes all food that is eaten at the place of preparation and purchase, while traveling away from the place of preparation and purchase, and immediately upon arrival at another location without any further preparation.

The AHC's decision is reversed in part and affirmed in part, and the case is remanded.

II. Facts and Procedural HistoryA. Krispy Kreme's business operations and its refund claim

At all times relevant to its claim, Krispy Kreme owned and operated four retail stores in the state of Missouri. Most of each store's sales consisted of donuts that were cooked on the premises. Each store also sold other food items, including bagged coffee beans and ground coffee, hot and cold coffee drinks, hot chocolate, milk, bottled water, bottled juices and soft drinks. Some of these additional food items, such as hot coffee and hot chocolate drinks, were prepared by the stores that sold them; other food products were not prepared by the stores.¹

Krispy Kreme collects sales tax from its retail customers and regularly remits the proceeds to the Missouri Department of Revenue. Until 2006, Krispy Kreme collected and remitted sales tax at a rate of 4 percent for all its retail sales. But in early 2006, Krispy Kreme's state tax manager discovered section 144.014, which provides that

1. Notwithstanding other provisions of law to the contrary ... the tax levied and imposed pursuant to sections 144.010 to 144.525 and sections 144.600 to 144.746 on all retail sales of food shall be at the rate of one percent....

2. For the purposes of this section, the term “food” shall include only those products and types of food for which food stamps may be redeemed pursuant to the provisions of the Federal Food Stamp Program as contained in 7 U.S.C. Section 2012, as that section now reads or as it shall be amended hereafter, and shall include food dispensed by or through vending machines. For the purpose of this section, except for vending machine sales, the term “food” shall not include food or drink sold by any establishment where the gross receipts derived from the sale of food prepared by such establishment for immediate consumption on or off the premises of

[358 S.W.3d 50]

the establishment constitutes more than eighty percent of the total gross receipts of that establishment, regardless of whether such prepared food is consumed on the premises of that establishment, including, but not limited to, sales of food by any restaurant, fast food restaurant, delicatessen, eating house, or cafe.

This discovery prompted Krispy Kreme to seek a partial refund of taxes paid between 2003 and 2005 totaling $324,237. It arrived at this figure by calculating the difference between the 4–percent rate and the 1–percent rate as applied to 1) products clearly intended for home use, such as ground coffee and coffee beans, 2) products that its individual stores did not prepare, such as bottled water and bottled juices, and 3) donuts that had been cooked in-store. Krispy Kreme did not seek a refund of sales tax as to any sales of hot coffee or hot chocolate.

The director of revenue denied Krispy Kreme's refund claim on May 16, 2006. In explanation, the director stated only, “This refund request does not qualify under section 144.190 ² ....” Krispy Kreme sought review by the AHC of the director's decision. Subsequently, Krispy Kreme reduced its refund claim to $277,992.20 after concluding that no transactions characterized as “dine-in sales” qualified for section 144.014's reduced sales tax rate.

B. Evidence presented by Krispy Kreme

During proceedings before the AHC, Krispy Kreme presented three kinds of evidence. First, it presented evidence showing the time elapsed between the cooking and the sale of its donuts. Based on its daily preparation cycles, Krispy Kreme calculated that between 29.5 and 46.3 percent of its gross receipts derived from donuts that sat in its stores for intervals of at least one hour between rolling out of the oven or fryer and the moment of sale.

The second piece of evidence presented by Krispy Kreme related to the quantity of donuts purchased during each transaction. Krispy Kreme added the gross receipts derived from donuts sold by the dozen to the gross receipts derived from the sale of products not prepared by its stores. For each of its Missouri stores, and for each of the three years at issue, the sum of these two categories amounted to greater than 20 percent.

Finally, Krispy Kreme presented evidence relating to where its customers ate the donuts they had purchased. Krispy Kreme surveyed its customers over the course of several days at each of its Missouri retail locations, asking them whether they intended to eat their donuts at seating provided by the Krispy Kreme store, while in transit to another location, or after arriving at another location such as a home, office, church or park. When compiling the results of this survey, Krispy Kreme counted purchases by each customer who planned to eat the donuts at the store or while traveling away from the store as “immediate consumption sales” and counted purchases by all other customers as “off-premises consumption sales.” Krispy Kreme then extrapolated the survey results to estimate the percentage of donut sales purchased for off-premises consumption and added this to the percentage of gross receipts derived from food items not prepared by the stores.

[358 S.W.3d 51]

The sum amounted to greater than 20 percent.

During the AHC proceedings, the director did not...