Little Rock Cleaning Systems, Inc. v. Weiss

DONALD L. Corbin, Justice.

Appellant, Little Rock Cleaning Systems, Inc., d/b/a/ Rainbow Sales & Service, appeals the order of the Pulaski County Chancery Court dismissing with prejudice its complaint for a refund of gross-receipts taxes it paid under protest. Upon the motion of Appellee, Richard Weiss, Director of the Arkansas Department of Finance and Administration, the chancellor dismissed the complaint pursuant to the provisions of ARCP Rule 12(b)(6). This appeal presents a question that requires interpretation of our statutes on gross-receipts tax; jurisdiction is in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3). Appellant makes three arguments for reversal. We find merit to the first argument and therefore reverse the order and remand for further proceedings. Accordingly, we need not address Appellant’s other two arguments.

Appellant is an authorized distributor and wholesaler of Rainbow vacuum cleaners, which Appellant alleges have a unique water filtration system that is superior to a regular vacuum cleaner and bag. Appellant sells Rainbow vacuum cleaners through outside sales personnel who demonstrate the vacuums in customers’ homes. During the audit period at issue in this case, the retail list price of the Rainbow vacuum cleaner ranged from $1,031.00 to $1,191.00. If the customer paid cash, he received a $50.00 cash discount. Usually, however, customers purchased under an installment sales contract. If these customers allowed the salesperson to dispose of their old vacuum cleaners, Appellant offered them a “special discount,” which ranged from $100.00 to $150.00 over the audit period. It is this special discount that is at issue in this appeal.

According to Appellant’s complaint, the special discount was offered as a marketing strategy that was designed to achieve three objectives from the unavailability of the old vacuum: (1) to prevent repossession of a Rainbow vacuum cleaner sold on an installment basis; (2) to put the customer in the position of using the Rainbow vacuum cleaner to its full potential; and (3) to ensure the customer’s achievement of Appellant’s claims of the Rainbow vacuum cleaner’s performance. Appellant offered the same special discount regardless of whether the customer’s vacuum was new, old, or even a nonelectric sweeper. Appellant disposed of the used vacuums by selling them in lots on an “as is” basis to the highest bid from various used vacuum cleaner shops. Generally, appellant received an approximate average of $10.00 for each vacuum it sold to the used vacuum cleaner shops.

Appellant’s salespeople computed and collected the gross-receipts tax on each sale of a Rainbow vacuum cleaner. They calculated the tax based on the retad list price less any cash discount or special discount taken by the customer. Appellant’s monthly gross-receipts tax reports reflected this calculation of the tax.

Appellee’s office audited Appellant’s reports for the period of July 1, 1988, through May 31, 1991, and assessed additional taxes and interest of $10,279.12 against Appellant on the basis that Appellant failed to charge and collect tax on the amount shown on its invoices as a special discount that was deducted from the retail list price. The audit did not result in an additional assessment of tax against the $50.00 cash discount.

Appellant protested the additional assessment following the audit, and the administrative law judge upheld the assessment. The commissioner of revenues refused Appellant’s request pursuant to Ark. Code Ann. § 26-18-405 (Supp. 1995) to revise the administrative law judge’s decision. Appellant therefore paid under protest the additional assessment of $10,279.12 and filed this suit for refund in chancery court pursuant to Ark. Code Ann. § 26-18-406 (Repl. 1992). Appellant took a voluntary non-suit and then refiled the suit for refund.

In Appellee’s Rule 12(b)(6) motion, he contended that gross receipts includes the value of any property taken in lieu of or in addition to money as consideration for a sale. Appellee also contended that Appellant purported to reduce the retail price of its vacuums by the agreed value of the trade-in vacuums, which is the amount of the special discount. Appellee then argued that Appellant’s reduction of its profit margin did not change the tax consequences of the transaction. Appellee argued further that Appellant’s complaint was devoid of any authority requiring Appellee to look beyond Appellant’s invoices to determine the actual value of trade-in merchandise rather than accepting Appellant’s determination of that value as stated in the invoices. The chancellor considered Appellee’s motion and brief in support and granted the dismissal with prejudice pursuant to the provisions of ARCP Rule 12(b)(6). This appeal followed.

Appellant’s first argument for reversal is that the trial court erred in granting the Rule 12(b)(6) dismissal because the complaint does indeed state facts upon which relief can be granted. We agree that the complaint states facts sufficient to survive a Rule 12(b)(6) motion and reverse and remand for further proceedings.

In support of the additional assessment, Appellee relies on the definition of “gross proceeds” or “gross receipts” in Ark. Code Ann. § 26-52-103(a)(4) (Supp. 1995), which includes the total amount of consideration for the sale of tangible personal property, “whether the consideration is in money or otherwise” and the Arkansas Department of Finance and Administration’s Gross Receipts Tax Regulation GR-3.C.(3), which provides that gross receipts or gross proceeds “includes the value of any property taken in lieu of or in addition to money as consideration for a sale.” In defense of this appeal, Appellee argues that the chancellor properly determined that Appellee was correct in its interpretations of Section 26-52-103(a)(4) and the corresponding regulations and was therefore correct in granting the dismissal as a matter of law. Appel-lee’s argument completely overlooks the fact that this was a dismissal under Rule 12(b)(6) and not a judgment on the pleadings or summary judgment. Appellee, after all, is the one who moved for the dismissal based on Rule 12(b)(6). ■

Rule 12(b)(6) provides that a motion to dismiss a complaint may be made for the complaint’s “failure to state facts upon which relief can be granted[.]” When considering a Rule 12(b)(6) motion to dismiss, the trial court treats the facts alleged in the complaint as true and views them in the light most favorable to the party who filed the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). In deciding such motions, the trial court must look only to the allegations contained in the complaint. Id. However, Rule 12(b) provides that:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Thus, it is improper for the trial court to look beyond the complaint to decide a Rule 12(b)(6) motion unless it treats the motion as one for summary judgment. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). Here, we are confident the chancellor did not treat this motion as one for summary judgment because the express terms of the chancellor’s order clearly state that she considered only the motion for dismissal and brief in support. In addition, the record before us contains only the complaint, the motion to dismiss based on Rule 12(b)(6), and an answer.

Rule 12(b)(6) must be read in conjunction with Rule 8, which sets out the requirements for a complaint. Spires v. Members of the Election Comm’n, 302 Ark. 407, 790 S.W.2d 167 (1990). A complaint that merely alleges conclusions without alleging facts does not state facts upon which relief can be granted and may therefore be subject to a Rule 12(b)(6) dismissal. Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993). In testing the sufficiency of the complaint on a motion to dismiss, the complaint is to be liberally construed as provided in ARCP Rule 8(f). Id.

The complaint before us alleges that Appellee’s assessment of additional gross-receipts tax was in violation of the gross-receipts tax laws and regulations because the amount of the special discount Appellant granted to its customers was not the value of the used vacuum that the customer traded in. Alternatively, the complaint alleges that if the used vacuum cleaners did constitute part of the gross receipts of the sale, then Appellee’s determination that the value of the used vacuums was equal to the amount of the special discount was erroneously overstated. In support of these allegations, the complaint alleged the following facts: Appellant offered the same special discount of $100.00 or $150.00 regardless of whether the customer’s vacuum was new, old, or even a nonelectric sweeper; Appellant disposed of the used vacuums by selling them in lots on an “as is” basis to the highest bid from various used vacuum cleaner shops; generally, Appellant received an approximate average of $10.00 for each vacuum it sold to the used vacuum cleaner shops.

We conclude that the aforementioned facts are sufficient to survive a motion to dismiss for failure to state facts upon which relief can be granted. The complaint does more than state mere allegations; it supports those allegations with facts. The chancellor therefore erred in dismissing this complaint pursuant to Appellee’s Rule 12(b)(6) motion because, by alleging that the discount was not based on the value of the vacuum cleaners received by Appellant, facts alleging a claim for relief have been pleaded. We reverse and remand for further proceedings.

We note that both dissents confuse resolution of a question of law with entering judgment as a matter of law. Here, although we have said the complaint is sufficient to survive a Rule 12(b)(6) dismissal, unlike the dissenting opinions, we express no view as to whether the proof presented on the claim will entitle Appellant to the relief it seeks.

Reversed and remanded.

Dudley, Glaze, and Roaf, JJ., dissent.