Opinion
No. 90-CA-0429.
January 31, 1991. Writ Granted April 11, 1991.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE GEORGE C. CONNOLLY, JR., J.
John A. Stassi II, Rodney J. LaCoste, Jr., Stassi, Rausch Giordano, Metairie, for plaintiff.
Marlon Van Harrison, Baton Rouge, for defendant.
Before ARMSTRONG, PLOTKIN and BECKER, JJ.
The Department of Revenue and Taxation appeals the trial court's judgment affirming the ruling by the Board of Tax Appeals refunding sales tax paid under protest by taxpayer, Associated Hospital Services, Inc. We affirm the trial court's judgment.
Associated Hospital Services, Inc., "Associated", a Louisiana non-profit corporation, was organized in 1969. Its stated purpose is to "furnish centralized hospital services for all participating institutions" and "in connection therewith . . . (to) own and operate a central laundry plant and to do and perform all and every kind of laundry work and service . . . for the sale and exclusive use of any member hospital or hospitals." The operation of Associated includes picking up, laundering and redelivery to each of the members and no others, of their soiled linens and also replacing of linens when they wear out.
At the time of its organization Associated was wholly owned by Methodist Hospital, Sara Mayo Hospital, Flint-Goodrich Hospital and East Jefferson Hospital; all of which are non-profit institutions. Each original member entered into a contract for 20 years to have all laundry processed at a new plant built in 1971, and each original member bore its pro rata share of total operating costs, including the mortgage payments, based on annual projected operating costs budgets. On December 15, 1984, Associated's articles of incorporation were amended to create a second class of associate membership, limited to non-profit institutions, entitled only to the benefit of Associated's services. As of the present time, Associated's participating members are: East Jefferson Hospital, West Jefferson Hospital, Methodist Hospital, Mercy Hospital, Hotel Dieu and Tulane University Medical Center and Clinic.
In 1971, Associated asked the Attorney General of Louisiana to render an opinion as to whether Associated would be exempt from paying sales taxes. The Attorney General concluded that as a matter of "interpretation", although there was no specific exemption from sales tax provided for their particular situation, the taxpayer's plant was nothing more than an extension of the hospitals which own it, and also because there were no actual "sales of services", there was no taxable act upon which to base a tax.
The Department of Revenue and Taxation for the period of January 1, 1984 through April 30, 1987, assessed Louisiana General Sales Tax on costs and expenses which constituted sales of taxable laundry services.
Associated filed a protest and claim for refund and the Board of Tax Appeals ruled in favor of Associated. The Department of Revenue and Taxation filed a Petition to Review the decision of the Board of Tax Appeals. On October 20, 1989, the trial court rendered judgment in favor of Associated affirming the Board of Tax Appeal's decision.
The Department of Revenue and Taxation cites Cajun Electric Power Co-op, Inc. v. McNamara, 452 So.2d 212 (La.App. 1st Cir.), writ denied, 458 So.2d 123 (1984) and McNamara v. Stauffer Chemical Co., 506 So.2d 1252 (La.App. 1st Cir.), writ denied, 512 So.2d 454, 455 (1987) to support its argument that Associated is not entitled to a tax exemption. Associated does not argue that it is entitled to a tax exemption; only that there is no sales tax liability generated because Associated is an alter ego of the six members involved.
Cajun Electric is clearly distinguishable from the instant case. In April of 1971, Gulf States Utilities Company (GSU) and S W entered into a contract for the construction of River Bend Nuclear Power Plant. Eight years later, GSU and Cajun, while construction was still underway, entered into a contract where Cajun would become 30% co-owner of River Bend. They executed a "Joint Ownership Participation and Operating Agreement" which provided that the parties in no way intended to "create, or by their actions as co-owners any joint venture, partnership, association or trust, or render the co-owners liable as partners or trustees." The court held that Cajun and GSU had entered into a joint venture whereby Cajun's original identity was changed, and it was not exempt from taxes in its new role. The court stated when the cooperative changes its identity or assumes a new role, it can no longer claim a tax exemption.
This is not an instance where a tax exempt organization existed to begin with. Associated is a unique institution. It is one of a kind in Louisiana and there may be as few as seventy co-op laundries in the whole United States. When Associated sought the Attorney General's opinion on whether its operations would generate a sales tax liability it was undoubtedly because Associated's situation was novel.
In testimony before the Board of Tax Appeals, Associated's General Manager explained how Associated operates. It has a board of directors consisting of the administrator or a representative of the member hospitals and a lay person on their board. Every December each hospital submits an estimate of the pounds of laundry to be cleaned. Associated makes an assessment for each hospital and each hospital contributes proportionate to its benefit. Its facility was financed wholly through New York Life Insurance Company with a donation from Hill Burton, a federal grant. Participating members are also assessed costs for the mortgage on the facility and its equipment.
In Stauffer the issue of contention was whether an aspect of Stauffer Chemical Company's business, the regeneration of sulfuric acid, was a taxable service. The trial court found that Stauffer was restoring the sulfuric acid which constituted a repair, a taxable service under the code. The facts in Stauffer have little in common with the case at bar.
In Stauffer the transaction between the parties was between two separate entities unlike the instant case where Associated acts solely for its members. Associated describes itself as a conduit whereby its members are doing their own laundry at a central location and are paying their pro-rata shares of the cost of operations. We agree with the trial court, under these circumstances, the transactions between Associated and its member hospitals do not constitute "sales of services" on which a sales tax can be assessed.
In its second assignment of error the Department asserts that the trial court relied on the Attorney General's opinion of 1971 in granting judgment for Associated. This assignment lacks all merit. The trial court never ruled that the Department was bound by the Attorney General's opinion. The Department's argument regarding separation of powers and its reliance on Parish of Jefferson v. Ekco-Glaco, 280 So.2d 629 (La.App. 1st Cir. 1973) is totally misplaced. In its reasons for judgment the trial court distinctly states that it made no findings independent of the Board of Tax Appeals. It conceded that its role was to act as an appellate court and held that in view of the reliable, probative and substantial evidence on the record that there was no manifest error in the Board of Tax Appeals decision.
Associated would have us construe the Department's tacit adoption of the 1971 Attorney General's opinion as an administrative rule under La.R.S. 49:951(6). Administrative rules may only be amended or repealed by following the procedures set forth in the Administrative Procedure Act. Associated argues that the Department of Revenue failed to follow these procedures in its attempt to retroactively assess taxes in contravention of the Attorney General's opinion. There is no precedent for Associated's argument and it is a broad reading of the statute which only refers to state agencies. It is sufficient to say that in the manner in which it functions Associated generates no sales tax liability.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
I respectfully dissent from the majority's decision granting plaintiff, Associated Hospital Services, an exemption from paying Louisiana sales taxes on the laundry services it provides its member hospitals.
The "well-established rule" in Louisiana law is that exemptions from sales taxes should never be presumed, but must be "strictly construed and . . . clearly and unequivocally and affirmatively established." Vulcan Foundry, Inc. v. McNamara, 414 So.2d 1193, 1197 (La. 1982) (on rehearing), citing Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958) (on rehearing). The Attorney General opinion, the trial court opinion, and the majority in the instant case all concede that Louisiana law does not establish an exemption for the situation presented here. Additionally, all three recognize the fact that the "furnishing of laundry, cleaning, pressing and dyeing services" is listed as a taxable "sale of services" in LSA-R.S. 47:301(14)(e).
Despite the above, the trial court and the majority allow the exemption on the basis of the attorney general's findings that Associated's plant is simply an extension of the member non-profit hospitals and that there is "no actual 'sale of services' between the organization and the hospitals."
I disagree for several reasons. First, the attorney general's interpretation was made in derogation of the general principle, stated above, that tax exemptions must be strictly construed. By allowing an exemption under the circumstances presented by the instant case, the hospitals have been improperly allowed to create a new area of exemption not previously recognized in law in violation of all the general principles of statutory interpretation ordinarily applied in similar circumstances.
Second, I disagree with the attorney general's original findings. Certainly laundry services are necessary to the administration of a hospital. However, many, perhaps most, hospitals in this day and age elect to send their laundry out, instead of operating in-house laundry services. The fact that laundry services are indispensable to the operation of the facility does not justify the conclusion that the laundry therefore is an "extension" of the hospital itself. Associated is a separate corporation, distinct from all of its member hospitals. Tax exempt status should not be conferred on the basis of such an "interpretation" of the facts, especially in light of the fact that the law generally disapproves of such a loose construction of the exemption statutes.
Additionally, the attorney general's opinion that Associated was not engaged in the "sale of services" is not supported by the record evidence. The contracts between Associated and the member hospitals clearly identify all of the member hospitals as "purchasers" and refer repeatedly to the "sale" of laundry services. They require the member hospitals to send Associated a minimum amount of laundry and to pay a pro-rata share of the cost of operations. In a memorandum filed at the trial court level, Associated attempted to minimize the significance of the use of those terms in the contracts, claiming that "the essence of the obligation undertaken by each member, as an owner (not a customer) . . . was to bear its share of operating costs no matter whether [Associated] may not yet have performed any services or a full month's services." I fail to see the distinction argued by Associated. The fact is that the member hospitals pay Associated to provide laundry services, the same way that other hospitals pay outside entities to perform laundry service. The particulars of the arrangement should not be "interpreted" in a manner that allows the corporation to avoid its sales tax obligation, especially when that interpretation is in derogation of the long-standing jurisprudence in this state.
A third reason I disagree with the majority's decision is the fact that granting tax-exempt status to Associated gives the member hospitals an unfair advantage over other hospitals which send their laundry out, which is discriminatory to the other hospitals. The member hospitals receive a direct profit in the form of lower costs for laundry services. This gives the member hospitals a competitive edge and puts them in an unfair economic position.
Fourth, I believe that the majority's decision in the instant case will open the door to allow groups such as the member hospitals in this case to form separate corporations to provide other non-medical services which are indispensable to the operation of a hospital — services such as printing, equipment leases, uniform leases, automobile leases, etc. Like printing and rental services, the laundry services involved in this case are not relevant to the non-profit status of the member hospitals. In my view, non-profit hospitals should receive the benefits of their tax-exempt status only on medical services and supplies; they should be required to pay sales taxes on all non-medical services performed by third parties.
The final, and perhaps most important, reason for my dissent in this case is that I believe that the laundry service involved was created merely as an artifice to avoid paying sales taxes. The original member hospitals decided, as have many other hospitals, that an outside laundry service would be more efficient than an in-house service. However, they realized that they would probably be required to pay sales taxes on a regular outside service and sought to avoid that result. I do not believe that we should reward that subterfuge by allowing the hospitals to avoid paying taxes on services clearly subject to taxes under the black-letter law of this state.