- The North Carolina Supreme Court heard oral arguments Tuesday in a dispute pitting the state Revenue Department against Wireless Center of NC over $516,000 in unpaid sales tax and penalties.
- The case focuses on prepaid cards sold for Boost Mobile products and services. Revenue officials argued the cards should have been taxed. The company disagreed.
- Supreme Court justices questioned whether the state law involved in the dispute sets up ambiguity or double taxation.
The North Carolina Supreme Court wrestled Tuesday with a case pitting the state Revenue Department against a business that sold prepaid cards that could be used for wireless phone service. The dispute involves more than $516,000 in unpaid taxes and penalties.
Revenue officials argue that Wireless Center of NC should have collected sales tax when selling the prepaid cards from 2016 to 2018 at its six stores in Greensboro, Winston-Salem, and Monroe. The company responds that its cards for Boost Mobile products and services should have been treated as gift cards free from sales tax.
The state Office of Administrative Hearings sided with Wireless Center in May 2022, but the North Carolina Business Court ruled in favor of the Revenue Department in June 2023.
“Prepaid cards are a technology to add funds to a customer’s account with Boost,” argued Stanton Geller, Wireless Center’s lawyer. “it is in no way, shape, or form mobile telecommunications services.”
“Hopefully, it is clear that funds can be spent on any products or services at customers’ choosing,” Geller added. “That includes nontaxable items such as internet, which is covered by federal law with respect to its taxability or nontaxability.”
State law does not account for the customer’s intended use of the prepaid cards, responded state Assistant Attorney General Tania Laporte-Reveron, representing the Revenue Department.
“The statute is actually on the purchase — not on the intent of the customer, what he’s going to do with the internet,” she said. “What the statute taxes is the sale of this right that authorizes the purchase of mobile telecommunications services. This statute specifically says that it’s taxable at the point of sale and not at the point of use.”
Justice Richard Dietz questioned whether the law creates ambiguity about how the cards should be treated for tax purposes. “Courts wouldn’t want to construe a statute in a way that part of it is unconstitutional,” he said.
“If we end up finding any ambiguity in the statute, you lose,” he said to Laporte-Reveron. “The government loses. The taxpayer wins.”
Justice Phil Berger Jr. asked why the state law would treat the prepaid cards in a different way from a Visa gift card that a customer could use to buy the same goods and services.
Justice Tamara Barringer questioned whether the state law meant to tax an item that could be used to purchase other taxable items. “You talked about the intent of the legislature,” Barringer said. “Are we to accept that the legislature, in setting up this taxation of a right, knowing that it might be used for various things, that they have unwittingly or intentionally set up a situation where there’s a significant potential for double taxation?”
Wireless Center’s lawyers argued in 2023 that its prepaid cards should not have been taxed.
“After the Prepaid Cards were added to a customer’s Boost Mobile Account, the customer could then use the stored value to purchase a variety of goods and services, some of which were subject to sales tax and some of which were not,” the company’s lawyers wrote in December. “Among the products and services that the Prepaid Cards could be used to purchase was prepaid wireless calling service which are subject to sales tax and Internet access services which are not subject to sales tax.”
“The Department’s theory was that because the stored value provided the customer with the right to purchase prepaid wireless calling service, which is subject to sales tax upon purchase, the entire amount of the Prepaid Card was subject to sales tax, notwithstanding that it could have been used to purchase goods and services that were not subject to sales tax,” Wireless Center’s state Supreme Court brief continued.
The Revenue Department’s lawyers responded in February. Revenue officials label the prepaid cards “real-time replenishments of airtime units,” or RTRs. The department also refers to state law regarding “prepaid wireless calling service.”
“Wireless Center appears to conflate a customer’s purchase of the ‘right that authorizes purchase of mobile telecommunications service’ with a customer’s use (redemption) of that right,” wrote state Justice Department lawyers representing the Revenue Department. “Based on this mistaken identification, Wireless Center has concluded that RTR is not a taxable product but is more akin to a gift card and should be taxed as a gift card – at the point of use rather than at the point of sale.”
“The fundamental flaw with this premise is that, under North Carolina law, PWCS is taxed at the point of sale instead of the point of use,” state lawyers added. “As such, since RTR is a PWCS, it is properly taxed at the point of sale – when the customer purchases the ‘right’ from Wireless Center.”
In a court filing in March, Wireless Center replied to the Revenue Department’s brief.
“In summary, the Department argues that Wireless Center’s Prepaid Cards (or RTRs as the Department refers to them) must be ‘prepaid wireless calling service’ (‘PWCS’) because PWCS is subject to sales tax and Wireless Center’s sales must be taxable. The position is circular and avoids the question before the Court: do Prepaid Cards fall within the plain language definition of PWCS?” Wireless Center’s lawyers wrote.
Prepaid wireless service offerings “have changed significantly” since 2007, when the General Assembly adopted the laws at issue in the legal dispute.
“In the intervening years, the demand and the market for mobile telecommunications services changed yet the statutes have largely remained unchanged,” Wireless Center’s lawyers wrote. “The Department insists on putting a round peg (the statute) in a square hole (new offerings and technology), even if that means subjecting North Carolinians to sales tax twice on the same dollar and assessing North Carolina sales tax on unquestionably exempt purchases.”
“Contrary to the Department’s arguments, wireless service providers are not rewriting tax law to change the ‘taxable nature’ of a product by offering different products to satisfy consumer demand. Instead, wireless service providers, through originators such as Wireless Center, offer products and services that are not PWCS,” the brief continued.
“Unlike PWCS, the Prepaid Cards at issue here represent a credit to a customer’s Boost Mobile account, which can now be used to purchase plans and other products and services that are not PWCS or otherwise taxable.”