ARA Services, Inc. v. South Carolina Tax Commission , 271 S.C. 146 ( 1978 )

Ness, Justice

(dissenting) :

Believing the trial court correctly characterized ARA as a wholesaler, I dissent.

Initially, the sponsors were given the option of either preparing the meals or hiring a caterer. They elected to contract with ARA and paid respondent for the lunches. The sponsors transferred the boxed lunches to the children and then received consideration from the U. S. Department of Agriculture. Accordingly, two distinct sales or transfers of the meals transpired.

In each instance, the payment from the USDA to the sponsor was greater than the amount charged the sponsor by ARA, reflecting costs attributable to the sponsor’s serving of the meals to the children. This payment flowing from the federal government to the sponsor was the consideration for the second transfer or sale of the meals to the children. Therefore, ARA’s transfer of the lunches to the sponsor was a sale for resale.

The majority rests its conclusion on the fact the meals were never “sold” by the sponsors to the children. In this way, the majority seeks to distinguish the case from our recent decision in Slater Corporation v. S. C. Tax Commission, S. C., 242 S. E. (2d) 439 (1978).

I believe the two cases are strikingly similar. In Slater, the colleges purchased the meals from Slater, a subsidiary of ARA, and the students, in turn, purchased the meals from the colleges. In each instance, as here, the students paid the colleges more for the meals than the colleges paid Slater, reflecting the costs incurred by the school in serving the food.

In this case, it is irrelevant that the consideration for the second transfer did not flow directly from the children. In Slater, the fact that a college may have received payment for the student’s meals from a source other than the student himself (i. e., parents, a scholarship fund, etc.) would not have altered Slater’s status as a wholesaler.

The critical consideration is that two sales were involved in each case. According to Code Section 12-35-100, a “sale” is:

“Any transfer, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property . . .” (Emphasis supplied).

Therefore, it is not necessary for the consumer to give consideration in order for a sale to transpire; it is sufficient if consideration is provided by a third party in the consumer’s behalf.

This is not a situation where ARA sold the meals to the sponsor and the sponsor then gave the meals away without receiving consideration from any source. In this case there were two distinct sales pursuant to Code Section 12-35-100 with two distinct considerations passing.

I conclude ARA sold the lunches to the sponsors for resale as the sponsors received payment from the USDA when they transferred the meals to the children. I would affirm the order of the trial judge refunding the taxes paid under protest, with interest.