Strategic Risk Management, Inc. v. Federal Exp. Corp.

• Decision Date: 02 March 1999
• Citation: 686 N.Y.S.2d 35,253 A.D.2d 167
• Parties: 1999 N.Y. Slip Op. 1952, 1999 N.Y. Slip Op. 1953 STRATEGIC RISK MANAGEMENT, INC., etc., Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 35

686 N.Y.S.2d 35

1999 N.Y. Slip Op. 1952, 1999 N.Y. Slip Op. 1953

STRATEGIC RISK MANAGEMENT, INC., etc., Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 2, 1999.

I. Stephen Rabin, of counsel (Jacqueline Sailer, on the brief, Rabin & Peckel, L.L.P. and The Law Office of Leo W. Desmond, attorneys) for plaintiff-appellant and the class.

Debra A. Shields and Eliot S. Jubelirer, of counsel (Desmond T. Barry, Jr., Connie Lewis Lensing and Thomas F. Donaldson, Jr., on the brief, Condon & Forsyth, L.L.P., Morgenstein & Jubelirer and Federal Express Corporation, attorneys) for defendant-respondent.

JOSEPH P. SULLIVAN, J.P., ALFRED D. LERNER, ISRAEL RUBIN and PETER TOM, JJ.

TOM, J.

Plaintiff contends that the defendant carrier improperly collected a tax, as part of its rate, even though the taxing statute had temporarily lapsed. To the extent it seeks relief as a taxpayer, plaintiff is in the wrong forum and the claims are preempted by Federal law. To the extent that plaintiff seeks State remedies for breach of contract, preemption notwithstanding, it has failed to establish a prima facie case.

The 6.25% Federal excise tax on air transportation (26 U.S.C. § 4271), regularly renewed since its 1941 enactment, has a long history. Generally, the tax is collected by airlines from passengers at the time that tickets are purchased. Defendant FedEx is a Federally certified "cargo" (i.e. no passengers) carrier (see, Federal Express Corp. v. California Public Utilities Commission, 936 F.2d 1075 (9th Cir.1991), cert. denied 504 U.S. 979, 112 S.Ct. 2956, 119 L.Ed.2d 578). As an air carrier, it is subject to the excise tax imposed on goods being shipped by air. Unlike passenger airlines, for which the tax is separately broken out from the cost of the ticket and directly paid by the passenger, FedEx simply incorporates the tax and other undifferentiated overhead expenses within its rate, without separately charging the customer. Customers are advised that the rate they pay includes the excise tax. The FedEx Service Guide on which plaintiff relied specifically states: "[a]ll rates are on a per-package basis and include the excise tax required by the Federal government on the transportation of property by air."

Although the excise tax was regularly renewed by Congress, as a consequence of the 1995-1996 budget impasse between the President and Congress the tax was not immediately renewed when it lapsed on December 31, 1995. It became effective again only on August 27, 1996, lapsing again on December 31, 1996, but thereafter was renewed again effective March 7, 1997. FedEx did not reduce its rates, though, to reflect its nonpayment of excise taxes during those time periods, which is the crux of the dispute. As a practical matter, then, FedEx was increasing its profit margin on each shipment when it charged an air rate for which an amount equivalent to an excise tax was not deducted from the rate.

Plaintiff, on its own behalf and purportedly on behalf of all FedEx customers during the subject time periods, contend that this was an improper withholding of putative tax funds, entitling them to a refund. The complaint specifically alleged that the action was brought on behalf of all persons who "were charged a Federal tax on all parcels they shipped" during the relevant time periods, that FedEx "nonetheless continued to charge this non-existent tax in its basic rate," and that defendant "has collected and continues to collect from its customers a fee purported to be a Federal tax...." The complaint asserts a violation of General Business Law § 349; breach of contract insofar as the rate was effectively increased without written notice in violation of the agreement, and unjust enrichment, insofar as defendant should have reduced the rate accordingly to avoid a windfall.

The IAS court, characterizing this as a claim involving an alleged improper collection of the Federal excise tax, construed the action to be the equivalent of a tax refund action, and that it should be pursued against the Federal government rather than the private party. The court also found a general consumer fraud statute such as General Business Law § 349, to the extent that it relates to rates, routes or services, to be preempted by the Airline Deregulation Act of 1978. The court dismissed the unjust enrichment claim on the basis that such equitable relief was barred in the event of an express written contract. Finally, on the basis of documentary evidence, the court dismissed the contract claim, finding that the operative phrasing did not purport to separately charge for the excise tax, that any tax was simply to be incorporated within the general charge, and that it was undisputed that the charge set forth in the Service Guide did not itself change.

In an action to require the refund of an improperly collected Federal tax, proper venue is in Federal district court (28 U.S.C. § 1340), but only after a refund of the improperly collected tax or "any sum ... wrongfully collected" has been requested from the Department of the Treasury (26 U.S.C. § 7422[a] ), and the action may be maintained only against the United States (26 U.S.C. § 7422[f][1] ). Although persons collecting excessive taxes on behalf of the Federal government are required to provide a refund upon request (26 U.S.C. § 6415[c] ), no private cause of action thereby arises (DuPont Glore Forgan, Inc. v. AT & T, 428 F.Supp. 1297 (S.D.N.Y. 1977), aff'd 578 F.2d 1366 (1978), cert. denied 439 U.S. 970, 99 S.Ct. 465, 58 L.Ed.2d 431) and, in this case, plaintiff specifically made no claim under section 6415(c). Similarly, private actions commenced against air carriers to recover refunds of Federal excise taxes, allegedly unlawfully collected, have been dismissed in numerous Federal circuits involving collection of the lapsed excise tax (Brennan v. Southwest Airlines Co., 134 F.3d 1405 (9th Cir. 1998); Sigmon v. Southwest Airlines Co., 110 F.3d 1200 (5th Cir.1997) cert. denied, --- U.S. ----, 118 S.Ct. 370, 139 L.Ed.2d 268; Kaucky v. Southwest Airlines Co., 109 F.3d 349 (7th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 368, 139 L.Ed.2d 286 [1997]; Lehman v. USAIR Group, 930 F.Supp. 912 (S.D.N.Y. 1996)). To the extent that plaintiff seeks a refund of a tax actually collected, similar reasoning governs here.

The argument may be made, alternatively, that the sums sought to be recovered did not actually constitute taxes, since the authorizing legislation was lacking and the sums were not deposited with the Treasury Department. Under such a theory, relief would not be limited to an action against the United States. However, the present action, nevertheless, remains a claim for a tax refund. As noted by the Ninth Circuit, "a suit to recover either a 'tax' or a 'sum' constitutes a suit for a tax refund ... if someone wrongfully collects money as a tax, then a suit to recover the sum constitutes a tax refund suit, even if the sum did not literally constitute an 'internal revenue tax' " (Brennan, supra, at 1410). This has been described as a "bright line test" obviating any need to decide whether or not the airline had colorable authority to collect a tax (Brennan, at 1410, n. 7). The fact that, in Brennan, the airline had actually given some of the "tax" proceeds to IRS does not invalidate the basic rule as applied to the present case. In Kaucky, it was not even certain whether IRS had received the "tax" proceeds, and the result did not change. If, in fact, the sums were held out by FedEx, as collection agent for IRS, to constitute taxes--which is the gravamen of plaintiff's claim--then plaintiff's recourse still lies with the United States. The carrier, as an involuntary collection agent, is, rather, intentionally removed by Congress from exposure to taxpayer actions (Brennan, at 1411). In such a case, as the Seventh Circuit has noted, IRS "has plenty of remedies against its collection agents who fail to remit taxes that they collect" (Kaucky, supra, at 351-352). As in the Kaucky case, the carrier here, rather than perpetrating a fraud--a claim specifically dropped by plaintiff--"was overconfident in believing that the tax would be extended and as a result failed to take the prudent measures ... to refund the excise taxes.... Money collected in error by a lawful agent, public or private, of the Internal Revenue Service can be recovered only from the government ..." (Kaucky, supra, at 353; accord Sigmon, supra, at 1203). The history of the tax, which had never lapsed since its 1941 enactment, likely led the carrier to conclude that its renewal was imminent, as in Kaucky, at 352, so that no bad faith is apparent.

However, by making relief under section 7422 exclusive, Congress did not "leave consumers at the mercy of the airlines" (Sigmon, at 1206). In addition to seeking recourse against IRS, which then would be able to pursue remedies against its collection agent, a customer of an air carrier may also seek administrative relief with the Department of Transportation, empowered under...