Arkansas Democrat-Gazette

Justices decide how to tax food for eatery staff

Levy on retail cost, they say

- JOHN MORITZ

Arkansas’ high court decided Thursday how to tax free hamburgers that Burger King gives its managers, but declined to delve into the sizzling legal issue surroundin­g the state’s immunity from lawsuits.

The case before the high court involved a $33,000 tax dispute over what a central Arkansas Burger King franchisee, Flis Enterprise­s, owes for free “manager meals.”

State attorneys for the Department of Finance and Administra­tion said the company owed taxes on the full retail cost of the meals, while Flis Enterprise­s argued that it owed taxes on the lesser wholesale cost of the ingredient­s.

Tax attorneys say the case presented a mildly interestin­g conundrum that could affect many state restaurant­s. The spotlight, however, came when attorneys for the Department of Finance and Administra­tion filed notice with the court — just days before oral arguments last month — of their intention to raise the issue of sovereign immunity in the case. Sovereign immunity is the doctrine that bars lawsuits against the state and its agencies.

But the majority ruling by three justices — along with two dissents, and a pair of concurring opinions — came with little fanfare Thursday as the ruling stuck mostly to relatively mundane tax law.

In January, the high court ruled in another case, Andrews v. the Board of Trustees of the University of Arkansas System, that sovereign immunity could not be waived by the Legislatur­e through laws.

The Andrews decision overturned two decades of precedent in reading the Arkansas Constituti­on. Lawyers and lawmakers, as well as a pair of dissenting justices, warned that that opinion could have far-reaching consequenc­es.

In oral arguments, Finance Department attorneys did not make the explicit argument that sovereign immunity barred Flis Enterprise­s from taking the tax dispute to court. However, Joel DiPippa, the chief attorney for the agency, invited the justices to consider it.

Writing for the majority, Justice Rhonda Wood declined to do so.

“Although counsel and others may desire guidance on the impact of [the sovereign immunity ruling], it would be imprudent of this court to delve into the constituti­onal doctrine without full developmen­t before the

circuit court and when neither party is asserting it,” Wood wrote.

Along with the two other majority justices, Justice Courtney Goodson and Special Justice Lee Watson (filling in for recused Chief Justice Dan Kemp), as well as concurring Justice Robin Wynne, the court sided with the state that the “manager meals” should be taxed at their retail value, and reversed and dismissed Flis Enterprise­s’ suit.

Responding to the court’s ruling, the Finance Department released a simple statement agreeing with the outcome, while an attorney for Flis Enterprise­s said it was disappoint­ing.

Both parties, however, pointed to the court filings made by the state regarding sovereign immunity.

“Department policy prefers taxpayers have access to the court should the administra­tive process be exhausted,” spokesman Scott Hardin said in a statement.

Among the dissents and concurrenc­es, Justice Shawn Womack said he agreed with how the majority addressed sovereign immunity but disagreed with their analysis on the tax issue. Wynne said he would have reached the same conclusion on sovereign immunity but would have taken a different legal approach.

The sharpest critics of the majority’s opinion came from the justices who first raised their concerns in a dissent to the Andrews ruling.

Justice Karen Baker, who penned the dissent in Andrews, wrote in her new opinion “the majority has compounded the problem, and the status of the law on sovereign immunity is incomprehe­nsible.”

Justice Josephine Hart called the majority’s outcome “absurd” in her dual critique of the sovereign immunity and the tax arguments.

Thursday’s decision also did not provide any clarity for Chris Burks, the attorney who represente­d Michael Andrews, the bookstore clerk whose unsuccessf­ul lawsuit for back-wages was the basis for the court’s sovereign-immunity precedent.

“I think the majority of the current Arkansas Supreme Court is reeking havoc on long-establishe­d precedent in the state and creating inconsiste­ncy in the law,” Burks said.

Since the Andrews decision was handed down, lower court judges have adopted the decision to dismiss a variety of suits against state agencies. The Supreme Court has yet to follow up its ruling in any of those cases.

Outside of court, a proposed constituti­onal amendment has been drafted that would change Arkansas’ strict wording regarding sovereign immunity, though it has yet to clear the first step in getting on the November ballot.

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