Dot Foods, Inc. v. Dep't of Revenue

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1
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
DOT FOODS, INC., )
) No. 92398-1
Respondent/Cross Appellant, )
)
v. ) EnBanc
)
STATE OF WASHINGTON, )
DEPARTMENT OF REVENUE, )
) Filed MAR 11 2016
----------------
Appellant/Cross Respondent. )
________________________ )
YU, J.-We are asked to decide whether retroactive application of the
legislature's amendment to a business and occupation (B&O) tax exemption
violates a taxpayer's rights under the due process clause of the Fourteenth
Amendment, U.S. CoNST. amend. XIV,§ 1, collateral estoppel, or separation of
powers principles. Taxpayer Dot Foods contends that it should remain eligible for
a B&O tax exemption pursuant to our decision in Dot Foods, Inc. v. Department of
Revenue, 166 Wash. 2d 912, 215 P.3d 185 (2009) (Dot Foods I), despite an
intervening, contrary amendment to the applicable law. Because Dot Foods I does
not encompass the tax periods before us now, we hold that retroactive application
Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
of the legislative amendment to Dot Foods does not violate due process, collateral
estoppel, or separation of powers principles. We affirm in part and reverse in part.
FACTUAL & PROCEDURAL HISTORY
The B&O tax is imposed for "the act or privilege of engaging in business
activities" within the state. RCW 82.04.220(1). The tax applies unless a specific
exemption exists. See RCW 82.04.31 0-.427; see also TracFone Wireless, Inc. v.
Dep 't ofRevenue, 170 Wash. 2d 273, 296-97, 242 P.3d 810 (2010). Former
RCW 82.04.423(1)(d) (1983) exempted certain out-of-state sellers from the B&O
tax if they made "sales in this state exclusively to or through a direct seller's
representative," as defined in former RCW 82.04.423(2).
Dot Foods is an Illinois-based food reseller that sells products to service
companies in Washington through its wholly owned subsidiary DTI. Dot Foods
qualified for the direct seller's exemption under former RCW 82.04.423 from 1997
unti12000, when the Department of Revenue (Department) narrowed its
interpretation of the statute. This new interpretation gave rise to Dot Foods I, the
previous tax appeal implicated in the current dispute.
In 2009, we decided Dot Foods I, which held that the Department's revised
interpretation ofRCW 82.04.423 was contrary to the statute's plain and
unambiguous language. Dot Foods I, 166 Wash. 2d at 920-21. We concluded that
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Dot Foods, Inc. v. Dep't ofRevenue, No. 92398-1
"Dot [Foods] remains qualified for the B&O tax exemption to the extent its sales
continue to qualify for the exemption." Id. at 926.
Dot Foods continued to pay the full B&O tax during the pendency of its
prior tax appeal to avoid penalties and interest. Clerk's Papers (CP) at 360. In
December 2009, pursuant to the judgment in Dot Foods I, Dot Foods requested a
refund for B&O taxes paid from January 2005 through August 2009, id. at 83-84, a
time period that extends beyond the tax periods directly at issue in Dot Foods I.
In April2010, the legislature amended former RCW 82.04.423 in direct
response to our decision in Dot Foods I. LAWS OF 2010, 1st Spec. Sess., ch. 23,
§§ 401, 402. The amendment retroactively narrowed the scope of
RCW 82.04.423(2) and prospectively repealed the direct seller's exemption. Id. at
§ 401 (4 ). It is undisputed that Dot Foods qualified for the exemption under former
RCW 82.04.423 but is ineligible for the exemption under the 2010 amendment.
In July 2010, based on the retroactive application of the 2010 amendment,
the Department denied Dot Foods' refund request for the periods outside the
litigation in Dot'Foods I, "[s]pecifically, the refund request for Wholesaling B&O
tax for the periods from May 2006 through August 2009." CP at 309. However,
the Department explained that "retroactive application of the bill does not affect
the periods included in the Dot Foods Supreme Court decision. Specifically, it will
not apply to the periods from January 2000 through April2006." Id. at 308. Later
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Dot Foods, Inc. v. Dep'tofRevenue, No. 92398-1
that year, Dot Foods negotiated a settlement with the Department for over 97
percent ofthe B&O taxes paid from January 2000 through April2006, the refund
period directly at issue in Dot Foods I. Dot Foods' Resp. Br. & Br. on Cross-
Appeal (Dot Foods' Resp. Br.) at 7.
Dot Foods now seeks a refund for the B&O taxes it paid from May 2006
through December 2007, the interim period beginning immediately after the tax
periods at issue in Dot Foods I and ending when Dot Foods' business practices
changed in 2008. After the Department denied its refund request, Dot Foods
brought a refund action against the Department in Thurston County Superior
Court, challenging retroactive application of the amendment under theories of
collateral estoppel, separation of powers, and due process.
In a letter opinion, the trial court granted summary judgment to the
Department on the collateral estoppel and separation of powers issues but found in
favor of Dot Foods on the due process claim. CP at 468-74. The Department
appealed, and Dot Foods cross appealed on the separation of powers and collateral
estoppel issues. The Court of Appeals certified the case to this court pursuant to
RAP 4.4.
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ANALYSIS
The history of litigation around Washington's B&O tax and its subsequent
amendments has been a long and winding road. 1 While the constitutional validity
of the ability to impose a B&O tax is not at issue, this case requires us to examine
whether due process and collateral estoppel should disallow retroactive application
of an amended statute to a particular period of time. The dispute before us is
resolved by our own precedent, traditional legal principles, and cases from the
United States Supreme Court and federal district courts.
A. DUE PROCESS CLAIM
The Supreme Court set forth the due process standard for retroactive tax
legislation in United States v. Carlton, 512 U.S. 26, 114 S. Ct. 2018, 129 L. Ed. 2d
22 (1994). Carlton established that "[t]he due process standard to be applied to tax
statutes with retroactive effect ... is the same as that generally applicable to
retroactive economic legislation," id. at 30; that is, the statute must be '"supported
1
See Tyler Pipe Indus., Inc. v. Dep'tofRevenue, 105 Wn.2d 318,715 P.2d 123 (1986),
vacated, 483 U.S. 232, 107 S. Ct. 2810, 97 L. Ed. 2d 199 (1987) (invalidating Washington's
B&O tax scheme); Nat'! Can Corp. v. Dep 't of Revenue, 109 Wash. 2d 878, 749 P.2d 1286 (1988)
(Nat'! Can II) (Tyler Pipe applies prospectively only), overruled by Digital Equip. Corp. v. Dep't
a/Revenue, 129 Wash. 2d 177, 196P.2d 933 (1996);Am. Nat'! Can Corp. v. Dep'tofRevenue, 114
Wash. 2d 236, 787 P.2d 545 (1990) (applying the remedial amendment that cured the constitutional
defects of the B&O scheme to the interim period between Tyler Pipe and the effective date of the
amendment), overruled by Digital Equip., 129 Wash. 2d 177; Digital Equip. Corp., 129 Wash. 2d 177
(Tyler Pipe applies retroactively, overruling National Can II; limiting relief to retroactive credit
not a violation of due process); WR. Grace & Co. v. Dep't of Revenue, 137 Wash. 2d 580, 973 P.2d
1011 (1999) (affirming retroactive application of Tyler Pipe and upholding the exclusive remedy
feature of the remedial legislation that cured the B&O tax).
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
by a legitimate legislative purpose furthered by rational means."' I d. at 30-31
(quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104
S. Ct. 2709, 81 L. Ed. 2d 601 (1984)). Retroactive legislation must meet an
additional burden not faced by statutes with only prospective effect, but '"that
burden is met simply by showing that the retroactive application of the legislation
is itself justified by a rational legislative purpose."' I d. at 31 (quoting Pension
Benefit, 467 U.S. at 730).
We affirmed a retroactive tax amendment under the Carlton rational basis
standard most recently in In re Estate ofHambleton, 181 Wash. 2d 802, 335 P.3d 398
(2014), cert. denied, 136 S. Ct. 318 (2015). The legislature retroactively amended
the Estate and Transfer Tax Act, chapter 83.100 RCW, in direct response to our
decision in In re Estate ofBracken, 175 Wash. 2d 549, 290 P.3d 99 (2012). In
Hambleton, we upheld the retroactive application of the amendment against a due
process challenge under the Carlton rational basis standard.
Although the present case involves a different tax scheme, the underlying
facts are analogous to those in Hambleton, which is controlling precedent here. 2
Under the rational basis standard set forth in Carlton, as applied in Hambleton,
2
The trial court did not have the benefit of our decision in Hambleton when it issued its
letter opinion.
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Dot Foods, Inc. v. Dep'tofRevenue, No. 92398-1
retroactive application ofthe 2010 amendment at issue here does not violate due
process protections.
i. The 2010 amendment serves a legitimate legislative purpose
As with other economic legislation, a tax statute must serve a legitimate
legislative purpose. Carlton, 512 U.S. at 30. The legislature identified the
prevention of "large and devastating revenue losses" as the primary purpose for
narrowing the scope ofRCW 82.04.423. LAWS OF 2010, 1st Spec. Sess., ch. 23,
§ 401(3). This is the same legislative intent that the Supreme Court recognized as
a legitimate purpose in Carlton, 512 U.S. at 32, and that we upheld in Hambleton,
181 Wash. 2d at 827. Additionally, the legislature concluded that former
RCW 82.04.423 provided "preferential tax treatment for out-of-state businesses
over their in-state competitors and now creates a strong incentive for in-state
businesses to move their operations outside Washington." LAws OF 2010, 1st
Spec. Sess., ch. 23, § 401(3). This is analogous to the legislature's goal of
restoring parity between different classes of taxpayers, which we also accepted as a
legitimate legislative purpose in Hambleton, 181 Wash. 2d at 826. See also Am. Nat 'l
Can Corp. v. Dep 't ofRevenue, 114 Wash. 2d 236, 247-48, 787 P.2d 545 (1990). It is
clear that the amendment to RCW 82.04.423 serves a legitimate legislative purpose
under our case law.
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
Dot Foods alleges that the 2010 amendment is not supported by a legitimate
legislative purpose because the legislature was attempting to reinstate the
"'original intent'" of the direct seller's exemption. Dot Foods' Resp. Br. at 19.
Dot Foods contends, and the trial court agreed, that because "the [l]egislature
cannot know the intentions of a prior, distant legislature," the asserted purpose of
the amendment is both arbitrary and unreasonable. Id.; see also CP at 473.
However, our duty is to review the statute for its rational basis, not to
analyze the strength of its epistemological underpinnings. The rational basis test is
the "most relaxed form of judicial scrutiny." Amunrud v. Ed. ofAppeals, 15 8
Wash. 2d 208, 223, 143 P.3d 571 (2006). Our review is highly deferential, especially
in light of the fact that the legislature '"possesses a plenary power in matters of
taxation except as limited by the [c]onstitution,"' State ex rel. Heavy v. Murphy,
138 Wash. 2d 800, 809, 982 P.2d 611 (1999) (quoting Belas v. Kiga, 135 Wash. 2d 913,
919, 959 P.2d 1037 (1998)), and "'a particularly heavy presumption of
constitutionality applies when the statute concerns economic matters,"' Ford
Motor Co. v. Barrett, 115 Wash. 2d 556, 563, 800 P.2d 367 (1990) (quoting
Am. Network, Inc. v. Utils. & Transp. Comm 'n, 113 Wash. 2d 59, 79, 776 P.2d 950
(1989)). We have previously observed that where the legislature holds plenary
power, "'the courts will not question the wisdom or desirability of such legislative
requirements, so long as there is any reasonable basis upon which the legislative
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Dot Foods, Inc. v. Dep'tofRevenue, No. 92398-1
determination can rest.'" Bang D. Nguyen v. Dep 't ofHealth, Med. Quality Assur.
Comm 'n, 144 Wash. 2d 516, 549,29 P.3d 689 (2001) (emphasis added) (quoting
Ellestadv. Swayze, 15 Wn.2d 281,291, 130 P.2d 349 (1942)).
Dot Foods further claims that Carlton requires revenue losses be
"'unanticipated"' to meet the rational basis standard. Dot Foods' Resp. Br. at 28
(quoting Hambleton, 181 Wash. 2d at 825 (citing Carlton, 512 U.S. at 32)). There is
no holding in Carlton to that effect, and Dot Foods provides no case law
supporting this contention. The fact that the revenue losses in Carlton were, in
fact, "unanticipated" is dictum. Carlton, 512 U.S. at 32. Carlton should not be-
and has not been-interpreted as requiring that revenue losses be "unanticipated"
in order to satisfy the rational basis standard.
Similarly, the allegation that the amendment fails to serve a legitimate
purpose because the legislature had an "improper motive" of targeting Dot Foods
is unsubstantiated. The fact that the legislature was acting in direct response to our
decision in Dot Foods I does not constitute targeting a specific taxpayer, and the
statement of intent does not single out Dot Foods beyond pointing to the negative
impact that the decision would have on revenue generally. 3 The "improper
3
The Department estimated a projected revenue loss of more than $150 million over the
2010-2011 biennium as a result of Dot Foods I. CP at 80. Dot Foods' refund request was for
just over $500,000, Dot Foods' Resp. Br. at 9, indicating that other taxpayers would be affected
by the 2010 amendment-not just Dot Foods. At oral argument, the Department specifically
identified Stroh Brewery Company as another taxpayer that, like Dot Foods, qualified for the
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Dot Foods, Inc. v. Dep 't of Revenue, No. 92398-1
motive" that the Court refers to in Carlton was targeting taxpayers after
deliberately inducing them to engage in certain transactions. Carlton, 512 U.S. at
32. We see no evidence of any improper motive here, only the normal interplay
between the legislature and the judiciary. Furthermore, as long as it is acting
within its lawful power, "the motives of the [l]egislature are irrelevant to questions
of state taxation under the due process clause." Am. Nat 'l Can Corp., 114 Wash. 2d
at 247 (citing A. Magnano Co. v. Hamilton, 292 U.S. 40, 44, 54 S. Ct. 599, 78 L.
Ed. 1109 (1934)).
We do not find support for Dot Foods' assertions and hold that the 2010
amendment serves a legitimate legislative purpose.
ii. The 2010 amendment is rationally related to the legitimate legislative
purpose
A retroactivity period meets the Carlton standard if it is rationally related to
the amendment's legitimate purpose. Hambleton, 181 Wash. 2d at 823. Relying on
Tesoro Refining & Marketing Co. v. Department ofRevenue, 159 Wash. App. 104,
246 P.3d 211 (2010), rev'd on other grounds, 173 Wn.2d 551,269 P.3d 1013
direct seller's exemption under former RCW 82.04.423 but would not be eligible for the
exemption under the 2010 amendment. Wash. Supreme Court oral argument, Dot Foods, Inc. v.
Dep'tofRevenue, No. 92398-1 (Jan. 28, 2016), at 40 min., 12 sec., audio recording by TVW,
Washington State's Public Affairs Network, http://www.tvw.org; see also Stroh Brewery Co. v.
Dep 't of Revenue, 104 Wash. App. 235, 243-44, 15 P.3d 692 (2001). This supports the conclusion
that the legislature was not improperly targeting Dot Foods but was enacting a statute of general
application.
10
Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
(2012) (Tesoro I), Dot Foods asserts that the purported 27-year retroactivity period
is "irrational on its face." Dot Foods' Resp. Br. at 24.
Tesoro I is not controlling authority on this court, and to the extent that the
trial court relied on this case, it was operating in the absence of our decision in
Hambleton. Further, Dot Foods' contention that a 27-year retroactivity period is
per se unconstitutional is belied by the fact that we upheld a retroactive amendment
that occurred 37 years after the statute was originally enacted in W.R. Grace &
Co. v. DepartmentofRevenue, 137 Wash. 2d 580,973 P.2d 1011 (1999). Thus, the
length of time that has elapsed since a statute's original enactment is not
dispositive.
While it is true that the 2010 amendment theoretically dates back to
enactment under the plain language of section 402 and section 1704, LAws OF
2010, 1st Spec. Sess., ch. 23, §§ 402, 1704, the actual retroactive application ofthe
amendment is necessarily limited by the particularities of this case as well as the
applicable statute of limitations. At issue here is whether the amendment, which
went into effect on May 1, 2010, applies retroactively to the May 2006 through
December 2007 interim tax periods. Thus, the retroactivity period as applied to
Dot Foods is only four years.
In practical terms, the 2010 amendment cannot reach back 27 years, as
Dot Foods alleges. The statute of limitations prescribed by RCW 82.32.060(1)
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
functionally limits retroactive application of the amendment to four years. A four-
year retroactivity period, both as applied to Dot Foods in this particular case or as
generally applicable to any other taxpayer under the statute of limitations, is well
within the range of retroactivity periods that we have previously upheld. See
Hambleton, 181 Wash. 2d at 827 (eight-year retroactivity period); Digital Equip.
Corp. v. Dep 't ofRevenue, 129 Wash. 2d 177, 194-95, 916 P.2d 933 (1996) (four-
year retroactivity period); W.R. Grace, 137 Wash. 2d at 586-87 (eight-year
retroactivity period).
Furthermore, there is no "absolute temporal limitation on retroactivity."
W.R. Grace, 137 Wash. 2d at 602. The standard set forth in Carlton, which has been
followed by this court, states only that the retroactive period must be "rationally
related" to a legitimate legislative purpose. Hambleton, 181 Wash. 2d at 823 (citing
Carlton, 512 U.S. at 30-31 ). While there are certainly constitutional limits on how
far back laws may reach, see State v. Pac. Tel. & Tel. Co., 9 Wash. 2d 11, 117 P .2d
542 (1941 ), 4 whether the length of a retroactivity period breaches that limit should
be determined by a qualitative analysis of the law, not solely by a quantitative
measurement oftime, see Welch v. flenry, 305 U.S. 134, 147, 59 S. Ct. 121,
4
We invalidated a four-year retroactivity period in Pac{fic Telephone based solely on a
reference to '"prior but recent transactions.'" Pac. Tel. & Tel. Co., 9 Wash. 2d at 17 (quoting
Welch v. Henry, 223 Wis. 319,271 N.W. 68,72 (1937)). Pacific Telephone did not specify or
cite to an absolute constitutional limit on retroactivity and provides no insight into why a hard-
line rule should apply.
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
83 L. Ed. 87 (1938) ("In each case it is necessary to consider the nature of the tax
and the circumstances in which it is laid before it can be said that its retroactive
application is so harsh and oppressive as to transgress the constitutional
limitation.").
In Hambleton, for example, we found that the retroactivity period was
"rationally related to preventing the fiscal shortfall." Hambleton, 181 Wash. 2d at
827. Noting that the eight-year retroactivity period at issue was "not far outside
other retroactive periods that courts have accepted," we upheld the retroactive
application of the amendment against a due process challenge because it was
"directly linked with the purpose of the amendment, which [was] to remedy the
effects of Bracken." !d. Furthermore, we observed that any shorter retroactivity
period would have been arbitrary because "[i]t would allow some estates to escape
the tax while similarly situated estates would be subject to it." !d. This illustrates
that it is the function-rather than the length-of a retroactivity period that should
determine whether it comports with due process protections.
In this case, the actual retroactive effect of the amendment as applied to
Dot Foods is rationally related to the legislature's legitimate, stated purpose of
"prevent[ing] the loss of revenues resulting from the expanded interpretation ofthe
exemption." LAWS OF 2010, 1st Spec. Sess., ch. 23, § 401(4). Consequently, there
is no due process violation.
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B. COLLATERAL ESTOPPEL CLAIM
Dot Foods asserts that the May 2006 through December 2007 interim tax
periods are encompassed by the judgment in Dot Foods I, which prevents the
Department from assessing B&O taxes against it under the 2010 amendment
pursuant to collateral estoppel. Dot Foods also asserts that there is statutory
support for its collateral estoppel claim in section 1706 of the amending statute,
which explicitly preserves final judgments, LAWS OF 2010, 1st Spec. Sess., ch 23,
§ 1706. We do not find support for these arguments in our case law and hold that
collateral estoppel does not apply in this case.
i. Dot Foods fails to meet the requirements for collateral estoppel
The collateral estoppel doctrine "may be applied to preclude only those
issues that have actually been litigated and necessarily and finally determined in
the earlier proceeding." Christensen v. Grant County Hasp. Dist. No. 1, 152
Wash. 2d 299, 307, 96 P.3d 957 (2004). To invoke collateral estoppel, Dot Foods
must establish that (1) the issue decided in Dot Foods I was identical to the issue
that is presented to us now, (2) the prior action ended in a final judgment on the
merits, (3) the Department was a party or in privity with a party in the prior action,
and (4) application of the doctrine would not work an injustice. ld. "Failure to
establish any one element is fatal" to a collateral estoppel claim. Lopez- Vasquez v.
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Dot FoodsJ Inc. v. Dep Jt ofRevenue, No. 92398-1
DepJt ofLabor & Indus., 168 Wn. App. 341,345,276 P.3d 354 (2012). Because
Dot Foods cannot satisfy the first requirement, collateral estoppel does not apply.
Both the facts and the applicable law in this case are distinguishable from
Dot Foods I. The dispute in Dot Foods I arose out of Dot Foods' refund request
for the tax periods from January 2000 through April 2006, and the legal issue was
whether Dot Foods qualified for the direct seller's exemption under former
RCW 82.04.423. Dot Foods I, 166 Wash. 2d at 919. Dot Foods neither alleges nor
establishes that the subsequent interim tax periods from May 2006 through
December 2007 were directly at issue or actually litigated in Dot Foods I. In fact,
Dot Foods itself acknowledges that "the periods directly at issue in the prior
appeal" were January 2000 through April2006, CP at 359, and that the interim tax
periods fall outside the scope of Dot Foods I, Dot Foods' Reply Br. at 8.
Dot Foods asserts that under collateral estoppel principles, the decision in
Dot Foods I should extend to the interim tax periods because the prior tax appeal
adjudicated Dot Foods' exempt status under former RCW 82.04.423. Dot Foods'
Resp. Br. at 44. Nothing in the statute or our case law supports this assertion. To
the contrary, tax appeals are very limited causes of action. Under RCW 82.32.180,
tax appeals are confined to the specific taxes and associated time periods identified
by the aggrieved taxpayer. Thus, although Dot Foods I and the present case
concern the same taxable activity, different tax periods are involved.
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
The United States Supreme Court and federal circuit courts have declined to
apply collateral estoppel in federal tax cases involving identical taxable
transactions that occur in subsequent taxing periods. See Harvie Branscomb, Jr.,
Collateral Estoppel in Tax Cases: Static and Separable Facts, 37 TEX. L. REv.
584,587 (1959). In Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S. Ct. 715,
92 L. Ed. 898 (1948), the Court determined that separate tax periods give rise to
separate causes of action for collateral estoppel purposes. The Court held that the
United States Tax Court was not bound by a prior decision of the Unites States
Board of Tax Appeals, reasoning that where a subsequent proceeding relates to a
different taxing period, "the prior judgment acts as a collateral estoppel only as to
those matters in the second proceeding which were actually presented and
determined in the first suit." Id.
Dot Foods contends that Sunnen is inapplicable because it deals with the
federal income tax, which is assessed annually, as opposed to continuously on a
monthly basis like Washington's B&O tax. Dot Foods' Resp. Br. at 42. However,
the federal courts have extended Sunnen specifically to cases involving excise tax
liability. In Smith v. United States, 242 F.2d 486, 488 (5th Cir. 1957), the Fifth
Circuit Court of Appeals concluded that "[e]ach month, then, is the origin of a new
liability and of a separate cause of action." Applying Sunnen, the court stated that
"it is clear that the doctrine of res judicata does not apply since the instant suit does
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
not involve the same claim and the same taxable periods as were involved in the
prior action." Id.
Regardless of the different taxes involved, the broader rationale of Sunnen is
compelling:
A taxpayer may secure a judicial determination of a particular tax
matter, a matter which may recur without substantial variation for
some years thereafter. But a subsequent modification of the
significant facts or a change or development in the controlling legal
principles may make that determination obsolete or erroneous, at least
for future purposes. If such a determination is then perpetuated each
succeeding year as to the taxpayer involved in the original litigation,
he is accorded a tax treatment different from that given to other
taxpayers of the same class. As a result, there are inequalities in the
administration of the revenue laws, discriminatory distinctions in tax
liability, and a fertile basis for litigious confusion.
Sunnen, 333 U.S. at 599. The Court further observed that collateral estoppel is
only meant to apply in situations that "have remained substantially static, factually
and legally." ld. This reflects the well-established principle that an '"intervening
change in the applicable legal context"'-such as the retroactive amendment in this
case-prohibits the application of collateral estoppel. Hambleton, 181 Wash. 2d at
835 (quoting RESTATEMENT (SECOND) OF JUDGMENTS§ 28(2)(b) (AM. LAWINST.
1982)). The facts following Dot Foods I were not static, factually or legally.
Factually a different tax period was at issue, and legally there was an intervening
change in the law that narrowed the scope of the exemption in such a way that
excluded Dot Foods. In fact, Dot Foods concedes that if the amendment applies
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
retroactively, it would not be able to satisfy the requirements for invoking
collateral estoppel. Dot Foods' Resp. Br. at 37 ("Had the [l]egislature not changed
the law retroactively, Dot Foods would have met the 4-part test for collateral
estoppel.").
Sunnen and earlier federal cases 5 established that determinations about tax
liability for one taxing period under then-applicable statutes do not control
decisions regarding subsequent taxing periods under amended statutes. We find
the reasoning of these cases persuasive and hold that collateral estoppel does not
apply to subsequent taxing periods that were not previously adjudicated.
ii. Section 1706 does not extend the judgment in Dot Foods I to the
subsequent interim tax periods.
The traditional application of issue preclusion principles adequately
addresses the collateral estoppel claim, but Dot Foods also asserts a statutory basis
for the preclusive effect of the judgment in Dot Foods I. The amending statute
explicitly provides that the substantive amendment to RCW 82.04.423 "does not
affect any final judgments, not subject to appeal, entered by a court of competent
jurisdiction before the effective date of this section." LAWS OF 2010, 1st Spec.
5
See Monteith Bros. Co. v. United States, 142 F.2d 139, 140 (7th Cir. 1944) ("[A]lthough
the transactions involved in different years were similar, they were not identical, and must
therefore be studied in the light of the law and facts of the year involved."); Henricksen v.
Seward, 135 F.2d 986, 987 (9th Cir. 1943) ("While the mechanical processes and the business
practices of the taxpayer were found to be substantially identical in the several periods,
nevertheless the transactions held not subject to tax in the earlier suit were not the transactions
subjected to tax in this, nor were the periods involved the same.").
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
Sess., ch. 23, § 1706. This section has the effect of preserving the judgment in Dot
Foods I only as to the tax periods actually litigated in that case. Perhaps
anticipating that it could not satisfy the requirements for collateral estoppel,
Dot Foods asserts that collateral estoppel is "built into the 20 10 legislative
amendment" under section 1706. CP at 469.
The trial court properly rejected this argument, observing that "the 2006 to
2007 refund request was not a 'final judgment' when the amendment went into
effect. Indeed, that matter is currently 'subject to appeal' in this very case." !d. at
470. As discussed above, Dot Foods cannot show-and in fact admits-that the
interim period was not directly at issue or actually litigated in Dot Foods I.
Because a refund for the interim period was not reduced to a final judgment prior
to the date that the 2010 amendment went into effect, section 1706 is not
implicated.
C. SEPARATION OF POWERS CLAIM
"The legislature violates separation of powers principles when it infringes on
a judicial function." Hambleton, 181 Wash. 2d at 817-18 (citing Haberman v. Wash.
Pub. Power Supply Sys., 109 Wash. 2d 107, 143, 744 P.2d 1032, 750 P.2d 254
(1987)). We have recognized "that a retroactive legislative amendment that rejects
a judicial interpretation would give rise to separation of powers concerns" but have
been willing to uphold such amendments where "the legislature was careful not to
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
reverse our decision." Hale v. Wellpinit Sch. Dist. No. 49, 165 Wash. 2d 494, 508,
510, 198 P.3d 1021 (2009).
Dot Foods cannot point to any evidence that the legislature intended to affect
or curtail the judgment in Dot Foods I. In fact, as discussed above, the legislature
explicitly preserved prior judgments in section 1706 and we upheld a retroactive
amendment with language identical to section 1706 against a separation of powers
challenge in Hambleton, 181 Wash. 2d at 817. Furthermore, as also discussed above,
the judgment in Dot Foods I does not encompass the interim period at issue now;
therefore, retroactive application of the amendment to this period does not run
afoul of the separation of powers doctrine.
CONCLUSION
We have previously observed that "[o]ccasionally, try as the court may, the
legislature is disappointed with the court's interpretation." Hale, 165 Wash. 2d at
509. It is entirely within the proper function of the legislature to amend laws in
response to our decisions. This is how the lawmaking process is meant to work.
In amending RCW 82.04.423(2), the legislature was careful to avoid
trespassing on the judicial function by explicitly preserving any final judgments
prior to the effective date of the amendment. Our jurisprudence requires us to
show the legislature equal respect in this case by upholding the retroactive
20
Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
application of this amendment as to Dot Foods for the tax periods not encompassed
by our prior decision in Dot Foods I.
We affirm the trial court's decision to grant the Department's motion for
summary judgment on the collateral estoppel and separation of powers arguments,
but we reverse the trial court's decision to grant Dot Foods' motion for summary
judgment on the due process claim. In doing so, we hold that the retroactive
application of the amendment to RCW 82.04.423 applies to the May 2006 through
December 2007 interim tax periods, and that Dot Foods is liable for the B&O tax
for this time period.
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Dot Foods, Inc. v. Dep 't ofRevenue, No. 92398-1
WE CONCUR:
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