Opinion
No. 1 CA-TX 21-0009
01-31-2023
ADP, LLC, a Delaware limited liability company, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF REVENUE, an agency of the State of Arizona; City of Phoenix, Arizona, a charter city and political subdivision of the State of Arizona, Defendants/Appellees.
Ryan Rapp Underwood & Pacheco PLC, Phoenix, By Lesli M. H. Sorensen (argued), Michael G. Galloway, Ian A., Macpherson, Christopher T. Rapp, Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix, By Scot G. Teasdale (argued), Counsel for Defendant/Appellee Arizona Department of Revenue Wright Welker & Pauole PLC, Phoenix, By Scott G. Andersen (argued), Richard R. Carpenter, Counsel for Defendant/Appellee City of Phoenix The Cavanagh Law Firm P.A., Phoenix, By James G. Busby, Jr., Karen C. Stafford, Counsel for Amicus Curiae Arizona Tax Research Association, Chamber of Commerce and Industry, Arizona Technology Council, and Ryan LLC.
Ryan Rapp Underwood & Pacheco PLC, Phoenix, By Lesli M. H. Sorensen (argued), Michael G. Galloway, Ian A., Macpherson, Christopher T. Rapp, Counsel for Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix, By Scot G. Teasdale (argued), Counsel for Defendant/Appellee Arizona Department of Revenue
Wright Welker & Pauole PLC, Phoenix, By Scott G. Andersen (argued), Richard R. Carpenter, Counsel for Defendant/Appellee City of Phoenix
The Cavanagh Law Firm P.A., Phoenix, By James G. Busby, Jr., Karen C. Stafford, Counsel for Amicus Curiae Arizona Tax Research Association, Chamber of Commerce and Industry, Arizona Technology Council, and Ryan LLC.
Presiding Judge Brian Y. Furuya delivered the opinion of the Court, in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
FURUYA, Judge:
¶1 ADP, LLC ("ADP") appeals from the superior court's grant of summary judgment in favor of the Arizona Department of Revenue ("ADOR") and the City of Phoenix ("the City"), finding that ADP's contract with Maricopa County is subject to Transaction Privilege Tax ("TPT"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 ADP describes itself as a human resource services provider. It historically performed these services for clients manually but now largely automates those functions by licensing its Enterprise eTime ("eTime") software for its customers’ direct use. eTime is an application software that allows clients’ employees to login using the internet from their computers and enter their time and other employment data. eTime collects and processes employees’ data, which ADP then uses to generate employee's paychecks. Although multiple ADP customers use the same eTime software code and servers—all of which are maintained solely by ADP outside of Arizona—eTime is configured for each customer's individual needs.
¶3 ADP has contracted with Maricopa County since 2007. The contract grants Maricopa County access to eTime in exchange for payment of various "fees" associated with the use of eTime. On behalf of Maricopa County, ADOR assessed and collected TPT from ADP on revenues received from leasing eTime to Maricopa County under this contract. Likewise, the City assessed and collected additional TPT from ADP on these same revenues.
¶4 ADP requested refunds from ADOR and the City for the TPT it paid on monthly revenues from its eTime contract with the County for the periods from June 2011 through April 2014, and May 2014 through March 2018. The refund claims were denied, and ADP appealed to the superior court. The court granted ADOR and the City's motions for summary judgment, and ADP timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1) and - 2101(A)(1).
DISCUSSION
¶5 We review a grant of summary judgment de novo. Modular Mining Sys., Inc. v. Jigsaw Techs., Inc. , 221 Ariz. 515, 518 ¶ 9, 212 P.3d 853, 856 (App. 2009). We view the facts in the light most favorable to the party against whom summary judgment was entered and draw all justifiable inferences in its favor. Id. at 517 ¶ 2, 212 P.3d at 855. Summary judgment is appropriate when "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We will affirm the entry of summary judgment if it is correct for any reason. Hawkins v. State , 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App. 1995). When uncontroverted, "facts alleged by affidavits attached to [ ] motion[s] for summary judgment may be considered as true." Portonova v. Wilkinson , 128 Ariz. 501, 503, 627 P.2d 232, 234 (1981).
¶6 On appeal, ADP argues that eTime is not subject to TPT under A.R.S. § 42-5071(A) or under Phoenix City Code ("P.C.C.") § 14-450. We disagree and address each contention in turn.
I. eTime is subject to TPT under A.R.S. § 42-5071(A).
¶7 We apply a de novo standard of review to issues of statutory interpretation and application. Ariz. Elec. Power Coop., Inc. v. State ex rel. Dep't of Revenue , 243 Ariz. 264, 266 ¶ 8, 405 P.3d 238, 240 (App. 2017), as amended (Jan. 28, 2019). The goal of statutory interpretation is to give effect to the Legislature's intent, as determined by the statute's language. Bilke v. State , 206 Ariz. 462, 464 ¶ 11, 80 P.3d 269, 271 (2003). Where statutory language is clear, the court must "apply it without resorting to other methods of statutory interpretation ... unless application of the plain meaning would lead to impossible or absurd results." Id. quoting Hayes v. Cont'l Ins. Co. , 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994) (internal citations omitted).
¶8 Under A.R.S. § 42-5071(A), TPT applies to any lease or rental of tangible personal property ("TPP"). TPP, in turn, is broadly defined as "personal property that may be seen, weighed, measured, felt or touched or that is in any other manner perceptible to the senses." A.R.S. § 42-5001(21). Although ADP argues otherwise, we hold that eTime is TPP under § 42-5071 and controlling case law and, therefore, subject to TPT.
A. eTime is Tangible Personal Property.
¶9 ADP suggests that A.R.S. § 42-5001(21) ’s definition of TPP is ambiguous regarding the County's use of eTime. However, the Arizona Supreme Court's decision in State v. Jones , 60 Ariz. 412, 137 P.2d 970 (1943), eliminates any such ambiguity. In Jones , a defendant was prosecuted under the excise revenue act for failing to pay sales tax on revenue from jukeboxes in stores and restaurants across Maricopa County. Jones , 60 Ariz. at 414–15, 137 P.2d 970. The issue before the court in Jones was whether "the placing of the coin in the slot and the playing of the record" was a sale of TPP under the excise revenue act. Id. at 415, 137 P.2d 970. Like today's TPT statute, the excise revenue act provided for the assessment of taxes on "gross income from the business of selling any tangible personal property." Jones , 60 Ariz. at 415, 137 P.2d 970. Jones held that "[t]he playing of the record is perceptible to the sense of hearing and, hence, constitutes what the statute terms tangible personal property." Id. Therefore, the act of playing a record when a customer placed a coin into the machine constituted a sale of TPP and was subject to sales tax under the excise revenue act. Id. at 415–16, 137 P.2d 970. ¶10 Informed by Jones ’s reasoning, we conclude that A.R.S. § 42-5001(21) ’s definition of TPP includes application software such as eTime. Like the sound of the record in Jones , which was audibly perceptible to a jukebox patron's senses, eTime is likewise perceptible because it can be viewed by the County's users while accessing and using the program.
¶11 ADP argues that Jones is archaic, wrongly decided, and should not be followed. More specifically, ADP argues that Jones is distinguishable because jukeboxes are different from modern computers, which were unknown to the public at the time Jones was decided, and the current TPT statute differs from that applicable in 1943. However, Jones ’ analysis did not turn on the particular mechanism involved but rather on the perceptibility of what was being purchased. Jones notes that patrons paid to hear songs, and because songs were perceptible, they constituted TPP. Jones , 60 Ariz. at 414–15, 137 P.2d 970. And while computers and software as we know them today did not exist in 1943, the use of machines to automate a process in a way that remained perceptible to the senses was. Just as jukeboxes play songs from records for patrons to hear, modern computers run programs viewable to users that enable them to utilize the software to accomplish specific tasks. Both jukeboxes and computers produce perceptible effects, for which their users are willing to pay. Thus, the holding in Jones is not factually distinguishable from this case in any material way and remains both relevant and binding. As such, we are compelled to follow the holding in Jones and apply it to the facts in this case. See State v. Lucero , 223 Ariz. 129, 137 ¶ 24, 220 P.3d 249, 257 (App. 2009) ("We are bound by decisions of our supreme court.").
¶12 Further, while many changes have been made to the tax statutes since the Jones decision was rendered, the definition of TPP remains identical in the current statute, even with the benefit of Jones ’ construction thereof. The Legislature's continued use of the same definition of TPP signals its intent to maintain § 42-5001(21) ’s broad definition and indicates its tacit acceptance and adoption of Jones ’ interpretation. Jackson v. Northland Const. Co. , 111 Ariz. 387, 388, 531 P.2d 144, 145 (1975) (stating that "where a statute which has been construed by a court of last resort is re-enacted in substantially the same terms, the legislature is presumed to have placed its approval on the judicial interpretation given and adopted such construction for the re-enacted statute"). We must, therefore, give effect to that intent.
¶13 ADP relies on Honeywell Information Systems, Inc. v. Maricopa County , 118 Ariz. 171, 575 P.2d 801 (App. 1977) to argue that software should be considered intangible personal property under A.R.S. § 42-5001(21). The taxpayer in Honeywell challenged the Maricopa County Assessor's decision to include computer software in the Assessor's valuation of its computer hardware for property tax purposes. Id. While we observed in Honeywell that "[t]here is little doubt that computer software is intangible property and, as such, should be excluded in determining the value of tangible computer equipment," id. at 173, 575 P.2d at 803, this reasoning was directed to the context of ad valorem taxes.
¶14 Here, ADP seeks to define software as intangible for TPT purposes. Property taxes differ from TPT in application and purpose, and therefore constructions derived in the property tax context are a step removed and must yield to guidance provided in existing TPT jurisprudence. See Ariz. State Tax Comm'n v. Ensign , 75 Ariz. 220, 223, 254 P.2d 1029 (1953) (stating that TPT is "a tax upon the privilege of engaging in business measured by the amount or value of business done."); see also Ariz. Dep't of Revenue v. Mountain States Tel. & Tel. Co. , 113 Ariz. 467, 468, 556 P.2d 1129, 1130 (1976) (distinguishing TPT from property tax, which is "a tax upon the sale itself [or] upon the property sold"). And though the divergent characterization of software between ad valorem and TPT contexts might raise legitimate concerns about causing confusion to taxpayers, it is beyond this court's prerogative and authority to rectify any perceived discord. See Folk v. City of Phoenix , 27 Ariz. App. 146, 150, 551 P.2d 595 (1976) ("Questions as to the wisdom of a legislative act, as to its expediency or concerning the soundness of the policy outlined therein, must be left to the legislative branch of the government and such matters are not the proper realm of the courts."); Am. Fed'n of Lab. v. Am. Sash & Door Co. , 67 Ariz. 20, 40, 189 P.2d 912 (1948) ("We may not pass on the wisdom, the practicability, or the desirability of [ ] legislation."); State v. Rosengren , 199 Ariz. 112, 120 ¶ 26, 14 P.3d 303, 311 (App. 2000) ("This court[ ] ... may not disregard or deviate from controlling decisions of our supreme court.").
B. ADP is renting eTime to the County.
¶15 The superior court found that while ADP's business may have once been offering human resources services, it has since changed to renting human resources software. Given this record, we agree that the nature of ADP's business with the County is in renting eTime for the County's use.
¶16 Our supreme court addressed the distinction between providing a rental or providing services in State Tax Comm'n v. Peck , 106 Ariz. 394, 476 P.2d 849 (1970). The Peck court held that coin-operated laundromats and car-washing machines were subject to TPT. Peck , 106 Ariz. at 394, 476 P.2d at 849. Describing Peck's business operations as a rental, the Court stated: "[a]fter depositing a fixed sum of money in the machines the customers obtain exclusive use of the machines for a certain period of time. There is no question that the customers themselves perform all the manual activities necessary for the use of the machine." Id. at 395, 476 P.2d at 850. The Court then defined "to rent" as "(1) to take and hold under an agreement to pay rent," or "(2) to obtain the possession and use of a place or article for rent." Id. at 396, 476 P.2d at 851 (quoting Webster's Third International Dictionary). Peck held that while using the laundry machines, the laundromat's customers had exclusive use of those machines and exclusive control of "all manual operations necessary" to use the machines. Id. at 396, 476 P.2d at 851. According to Peck , this degree of use and control "[came] within the meaning of the term ‘renting’ as used in the statute." Id.
¶17 Here, the County's use of eTime parallels the customers’ use of the laundry machines found to be rentals in Peck . Much like laundromat customers pay for use of laundry machines, the County pays ADP fees in exchange for using its configured version of eTime. County employees "perform all the manual activities necessary" to use eTime by entering their hours and other employment data into the software, which then calculates and generates their paychecks. Id. at 395, 476 P.2d at 850.
¶18 ADP contends the County's use of eTime is distinguishable from Peck , arguing that because all its customers use the same "copy" of the eTime software—by which ADP means that all its customers access the same computer servers where eTime is stored and run—none of its customers have "exclusive use" of eTime. ADP maintains that the lack of exclusivity of use precludes the contract from constituting a rental as a matter of law. Not so.
¶19 ADP's analysis examines the taxable relationship from the wrong level of interaction. The contract with the County—and by extension, its associated revenue—is not for access to ADP's servers. It is for the use of eTime, which is experienced at the level of the customer's interface. When examining the level of customer interaction at the end user, the County's use of eTime is exclusive, in that "only those the County authorizes are using it." That each customer's access to eTime is configured to fit their particular needs further suggests that each customer has exclusive use of its configuration. For example, Maricopa County employees experience and use eTime differently than Pima County employees because each county's access to the software is configured specifically for their respective needs separately. The version of eTime seen by a given employee is determined by their employer and employment status, and they access eTime using their unique login credentials. These credentials function to prevent unauthorized access or use of each employee's account and configuration of eTime by anyone other than the County or its employees. ADP's contract with the County provides for the protection of this exclusivity.
¶20 For these same reasons, ADP's further arguments that the County does not have exclusive control of eTime because it has no access to eTime's source code, may not download it, may not sublease it, and may not alter it are also unavailing. That ADP places some limits on the County's use of eTime does not preclude the determination that the County has exclusive possession and control of the software sufficient to find the existence of a rental. When examined from the level of the customer's interaction with eTime, the County's control over its configuration of eTime is likewise exclusive. No other customers may access, let alone control, the County's unique configuration of eTime. Further, the record demonstrates ADP uniquely configures eTime for the use of each client according to the client's specifications. Thus, for evaluating whether the revenue generated by the County's contract with ADP constitutes a rental, the County's control over eTime is exclusive in all ways relevant to that analysis. Because the County's use and control of eTime are sufficiently exclusive as to the relevant level of interaction, the contract establishes a rental of eTime for purposes of charging TPT as provided in Peck . 106 Ariz. at 396, 476 P.2d at 851.
¶21 ADP attempts to distinguish Peck by relying on three factually inapposite cases. See City of Phoenix v. Bentley-Dille Gradall Rentals, Inc. , 136 Ariz. 289, 291–92, 665 P.2d 1011, 1013–14 (App. 1983) (stating that "the principal characteristic of a rental or lease is the giving up of possession to the lessee so that he, as opposed to the lessor, exercises control over and uses the leased or rented property"); Jones Outdoor Advert., Inc. v. Ariz. Dep't of Revenue , 238 Ariz. 1, 3 ¶ 12, 355 P.3d 603, 605 (App. 2015) (concluding that Jones's customers "receive the mere right to have a message displayed on the billboards [but] do not enjoy possession or control of the billboards"); Energy Squared, Inc. v. Ariz. Dep't of Revenue , 203 Ariz. 507, 510 ¶ 22, 56 P.3d 686, 689 (App. 2002) (holding that a tanning salon provided a service, rather than a rental because patrons did not "exclusively control all manual operations necessary to run" the tanning beds, but rather those functions were controlled by a tanning technician employed by the salon). ADP's argument citing each of these cases is dependent upon the erroneous assumption that eTime's automated functions constitute the provision of services. As explained above, this is an untenable premise since eTime is TPP.
¶22 As further authority to establish it is "in the business of providing HR services"—as opposed to leasing software—ADP cites Val-Pak East Valley, Inc. v. Ariz. Dep't of Revenue , 229 Ariz. 164, 272 P.3d 1055 (App. 2012). In Val-Pak , a direct mail advertising company provided advertising services to its clients. Val-Pak , 229 Ariz. at 165 ¶ 2, 272 P.3d at 1156. Val-Pak employees would obtain product information from clients, design, print, and compile client advertisements into envelopes, and physically deliver those envelopes to prospective customers through the mail. Id. This required human operation at every stage of Val-Pak's business. Id. Human operators had to obtain the requisite information from its clients, design the print advertisements, and compile them for delivery to clients’ customers. Id. The issue before the Val-Pak court was whether Val-Pak was selling TPP (the paper on which it printed client advertisements) or providing services to its clients. Id. at 167 ¶ 10, 272 P.3d at 1058.
¶23 Noting that "most transactions, to a certain degree, involve some amount of personal service and some amount of tangible property," id. (quoting New England Tel. & Tel. Co. v. Clark , 624 A.2d 298, 300 (R.I. 1993) ), we explained three approaches to "draw[ing] the taxable line" between tangible personal property and nontaxable services, id. at 167 ¶ 11, 272 P.3d at 1058. ADP argues that it falls into the first category, where "the service is the primary object of the transaction and the property is incidental to or an inconsequential element of the service and not separately charged." Id. But ADP's contract with the County does not fit this category because the property and "services" provided are easily separable. On ADP's invoices to the County, eTime is charged separately from other service-related charges. Those invoices show separate charges for entries such as "Hosting Services," "ADP Enterprise eTIME," "Hardware Shipping & Handling," and "Implementation Charges." Because we conclude that eTime is TPP under the statute as construed by Jones , and the charges for eTime to the County are listed independently from other services ADP has provided in connection with eTime, we need not draw a "taxable line," because ADP's separate charges for eTime distinguishes it from any true services charged under the contract.
¶24 To the extent ADP argues there are services included within the eTime charges, those services are secondary and necessary components of its software rental. We agree with ADOR that the services ADP provides (such as maintenance, troubleshooting, customer service, software configuration and updates, and technical fixes) are normal components of ADP's software rental business. Any "services" purportedly bundled are secondary to the taxable component of the transaction, the fees charged for the County's use of eTime, and therefore taxable.
C. ADP's commerce clause and apportionment arguments are new on appeal and, therefore, waived.
¶25 ADP's apportionment arguments were not raised in the superior court. "[I]ssues and arguments raised for the first time ... on appeal are [generally] untimely and deemed waived." Miller v. Hehlen , 209 Ariz. 462, 469 ¶ 21, 104 P.3d 193, 200 (App. 2005) (quoting Mitchell v. Gamble , 207 Ariz. 364, 369–70 ¶ 16, 86 P.3d 944, 949–50 (App. 2004) ). Because ADP did not present these arguments to be evaluated by the superior court, they are waived.
¶26 Even if ADP had properly raised this argument in the superior court, it fails on its merits. ADP cites Arizona Administrative Code § R15-5-1503(B), providing that personal property rental classifications apply to leasing or renting TPP in Arizona. According to ADP, eTime is hosted on servers outside of Arizona; therefore, taxing its use within Arizona violates the commerce clause. See U.S. Constitution art. 1, § 8, cl. 3. The record does not show that ADP's refund claims include TPT paid on activities outside of Arizona. Although ADP hosts eTime on servers located in other states, the County and its employees make use of eTime software within Arizona. TPT is assessed on the County's use of eTime within Arizona and does not implicate the commerce clause or apportionment issues.
D. Applying TPT to eTime does not violate the Internet Tax Freedom Act.
¶27 ADP argues that subjecting eTime to TPT violates the Internet Tax Freedom Act ("ITFA"). ITFA prohibits imposing "multiple or discriminatory taxes on electronic commerce." 47 U.S.C.A. § 151 note (ITFA § 1101(a)(2)). "Multiple" taxes exist where two states tax the same thing without providing a tax credit. City of Chicago v. StubHub!, Inc. , 624 F.3d 363, 366 (7th Cir. 2010). A tax is "discriminatory" if a business is subject to taxation solely because they engage in business using the internet. Id. According to ADP, imposing TPT on eTime revenues violates ITFA because ADOR "treat[s] ADP's online paycheck services differently than it would services involving physical assets, the way ADP conducted business pre-internet."
ADP also argues that ADOR discriminates against eTime in violation of ITFA by "attempting to tax activities that would not have been taxable but for the advent of the internet." Because this is a broader but ultimately redundant argument for our purposes, we do not directly address it further.
¶28 Imposing TPT on ADP's eTime contract with the County does not violate ITFA. While ADP may still describe itself as a payroll and human resource services company, and notwithstanding that its past business practices reflected the reality of that label, the record here establishes that under its present business model, ADP rents software that almost entirely automates tasks that were previously done by human employees, changing the nature of the transaction. For example, paying someone to wash clothing might be properly characterized as a service when done by hand, but paying to use technology that performs that same function by automation subjects the transaction to TPT. Cf Peck , 106 Ariz. at 395, 476 P.2d at 850 (treating payment for using automated washing machines as a rental subject to TPT). Similarly, before using eTime, ADP manually processed its customers’ payroll; now, ADP licenses eTime to its customers, and eTime automates the labor that ADP previously provided. The change in taxation status is entirely attributable to ADP's automation of its work, not because of its internet use. The charging of fees to use eTime software that automates its HR work fundamentally altered ADP's business, thereby warranting a change in taxation that is not discriminatory.
II. eTime is subject to TPT under Phoenix City Code § 14-450.
¶29 ADP's contract providing eTime to Maricopa County unambiguously falls into the category of business activity subject to TPT by Phoenix City Code ("P.C.C.") § 14-450. Under that section, TPT is imposed on "the gross income from the business activity upon every person engaging or continuing in the business of leasing, licensing for use, or renting [TPP] for a consideration." P.C.C. § 14-450.
¶30 eTime is subject to TPT under P.C.C. § 14-450 because it is expressly included within the P.C.C.’s definition of TPP. Under P.C.C. § 14-115(a), "[c]omputer software which is not ‘custom computer programming’ is deemed to be [TPP] for the purposes of this chapter." Custom computer programming excludes prewritten computer programs that are held or exist for "general or repeated sale, lease, or license." Id. § 14-115(b)(1). That eTime is modified for each customer's use does not bring it outside of § 14-115's parameters: "[m]odification to an existing prewritten program to meet the customer's needs is custom computer programming only to the extent of the modification , and only to the extent that the actual amount charged for the modification is separately stated on invoices ." Id. § 14-115(b)(2) (emphasis added).
¶31 Here, ADP provided prewritten software which it modified for the County's use, and those modifications were separately accounted for in ADP's contract with the County. Because eTime is not custom computer programming, it is TPP under § 14-115.
¶32 Finally, ADP is subject to TPT under P.C.C. § 14-450(a) because it covers gross income from "leasing, licensing for use , or renting [TPP]" (emphasis added). The contract between ADP and the County includes a "Software License" clause, granting the County a "personal, non-transferable, [and] non-exclusive right and license to use" eTime. ADP's choice to control the use of eTime via such licensing compels its treatment for taxation purposes under the P.C.C. Because a license for use falls expressly within § 14-450's parameters, eTime is subject to TPT under that section.
CONCLUSION
¶33 We affirm.