09-005759RX Gamestop, Inc. vs. Department Of Revenue Status: Closed DOAH Final Order on Tuesday, May 4, 2010.

Summary: The Rule is an invalid exercise of delegated legislative authority where it has the effect of nullifying one of the statutes it purports to implement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAMESTOP, INC., )

)

Petitioners, )

)

vs. ) Case No. 09-5759RX

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on February 15, 2010, in Tallahassee, Florida, before

Lawrence P. Stevenson, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Martha Harrell Chumbler, Esquire

Matthew Bernier, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302-0190

For Respondent: Jeffrey M. Dikman, Esquire

Office of the Attorney General

The Capitol, Plaza 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether subsections (1) and (2) of Florida Administrative

Code Rule 12A-1.074 enlarge, modify or contravene the specific

provisions of law implemented, or are arbitrary or capricious,

and thus constitute an invalid exercise of delegated legislative

authority.

PRELIMINARY STATEMENT

On October 20, 2009, Petitioner GameStop, Inc. ("GameStop")

filed a Petition to Determine the Invalidity of an Existing

Rule, challenging Florida Administrative Code Rule 12A-1.074(1)

and (2). The case was assigned to the undersigned and scheduled

for hearing on November 19, 2009. On October 30, 2009,

Respondent Department of Revenue (the "Department") filed a

motion seeking to continue the hearing and to conduct out-of-

state depositions via telephone. On November 4, 2009, GameStop

filed a responsive pleading in opposition to both the

continuance and the telephonic depositions. By Order dated

November 5, 2009, the undersigned denied the motion to continue

the hearing but granted the motion to conduct telephonic

depositions.

On November 5, 2009, GameStop's current counsel entered

their appearance and filed an unopposed motion to continue the

hearing. The motion was granted by way of an amended notice of

hearing re-scheduling the final hearing for February 15, 2010.

On November 17, 2009, GameStop filed a Motion for Leave to

File an Amended Petition. The Department did not oppose the

motion, which was granted by Order dated December 4, 2009.

GameStop filed its Amended Petition to Determine the Invalidity

of an Existing Rule on December 4, 2009.

The Amended Petition alleges that subsections (1) and (2)

of Florida Administrative Code Rule 12A-1.074 constitute an

invalid exercise of delegated legislative authority because they

enlarge, modify or contravene the specific provisions of the

laws implemented, Sections 212.02(15) and (16) and 212.09(1) and

(2), Florida Statutes. The Amended Petition also alleges that

subsections (1) and (2) of Florida Administrative Code Rule 12A-

1.074 are arbitrary or capricious.

On January 25, 2010, the parties filed a Joint Prehearing

Stipulation. On February 2, 2010, GameStop filed a motion for

summary final order. On February 8, 2010, the Department filed

its written response in opposition to the motion, with the

supporting affidavit of H. French Brown, IV.

At the outset of the final hearing, the parties agreed that

there remained no issues of material fact, and that the case

could proceed to decision based on GameStop's motion for summary

final order, the Department's response, the agreed facts set

forth in the Joint Prehearing Stipulation, and Mr. Brown's

affidavit. The final hearing consisted of legal argument, with

no live testimony presented and no exhibits offered into

evidence.

The one-volume Transcript of the hearing was filed at the

Division of Administrative Hearings on February 24, 2010. The

parties filed their Proposed Final Orders on March 8, 2010. All

references are to the 2009 codification of Florida Statutes

unless otherwise indicated.

FINDINGS OF FACT

Based on the stipulated facts and the uncontested affidavit

of H. French Brown, IV, the following findings of facts are

made.

1. The rule provisions at issue in this proceeding are

subsections (1) and (2) of Florida Administrative Code Rule 12A-

1.074, hereinafter referenced as "the Rule." The Rule provides:

12Aade-Ins.

(1) Where used articles of tangible

personal property, accepted and intended for

resale, are taken in trade, or a series of

trades, at the time of sale, as a credit or

part payment on the sale of new articles of

tangible personal property, the tax levied

by Chapter 212, F.S., shall be paid on the

sales price of the new article of tangible

personal property, less credit for the used

article of tangible personal property taken

in trade. A separate or independent sale of

tangible personal property is not a trade-

in, even if the proceeds from the sale are

immediately applied by the seller to a

purchase of new articles of tangible

personal property.

(2) Where used articles of tangible

personal property, accepted and intended for

resale, are taken in trade, or a series of

trades, at the time of sale, as a credit or

part payment on the sale of used articles,

the tax levied by Chapter 212, F.S., shall

be paid on the sales price of the used

article of tangible personal property, less

credit for the used articles of tangible

personal property taken in trade. A

separate or independent sale of tangible

personal property is not a trade-in, even if

the proceeds from the sale are immediately

applied by the seller to a purchase of new

articles of tangible personal property. 1 /

2. The Rule states that it is intended to implement the

following statutory provisions: Sections 212.02(15), 212.02(16),

212.07(2), 212.07(3), and 212.09, Florida Statutes.

3. Section 212.02, Florida Statutes, provides, in relevant

part:

212.02 Definitions -- The following terms

and phrases when used in this chapter have

the meanings ascribed to them in this

section, except where the context clearly

indicates a different meaning:

* * *

(15) "Sale" means and includes:

(a) Any transfer of title or possession, or

both, exchange, barter, license, lease, or

rental, conditional or otherwise, in any

manner or by any means whatsoever, of

tangible personal property for a

consideration. . . .

(16) "Sales price" means the total amount

paid for tangible personal property,

including any services that are a part of

the sale, valued in money, whether paid in

money or otherwise, and includes any amount

for which credit is given to the purchaser

by the seller, without any deduction

therefrom on account of the cost of the

property sold, the cost of materials used,

labor or service cost, interest charged,

losses, or any other expense whatsoever. . .

Trade-ins or discounts allowed and taken at

the time of sale shall not be included

within the purview of this subsection. . .

4. Section 212.07(2), Florida Statutes, set forth the

method and manner by which a dealer is to charge and collect

sales tax. Section 212.07(3), Florida Statutes, sets forth

penalties for a dealer who fails to collect sales tax. Neither

of these provisions affects the matters at issue in this

proceeding.

5. Section 212.09, Florida Statutes, provides, in relevant

part:

ade-ins deducted; exception.--

(1) Where used articles, accepted and

intended for resale, are taken in trade, or

a series of trades, as a credit or part

payment on the sale of new articles, the tax

levied by this chapter shall be paid on the

sales price of the new article, less the

credit for the used article taken in trade.

(2) Where used articles, accepted and

intended for resale, are taken in trade, or

a series of trades, as a credit or part

payment on the sale of used articles, the

tax levied by this chapter shall be paid on

the sales price of the used article less the

credit for the used article taken in

trade....[ 2 / ]

6. GameStop is a Minnesota corporation that is authorized

to do business in the State of Florida, and a registered dealer

for purposes of collecting and remitting sales and use tax to

the Department.

7. GameStop is a publicly held international retailer of

new and used video game hardware, software, and accessories,

with over 6,000 stores worldwide, including stores in Florida.

One of GameStop's customary business practices is to accept from

its customers used gaming software, hardware, and accessories

that the GameStop store manager determines is in resalable or

re-furbishable condition.

8. In return for the used articles, a GameStop customer

may choose among three options:

Option 1: The customer may receive cash in exchange

for the used items.

Option 2: The customer may apply the value assigned

to the item by the store manager as part payment

toward the immediate purchase of another new or used

item from GameStop.

Option 3: The customer may receive a credit for the

value of the used item, which may be used only toward

the purchase of new or used items from GameStop at

some time in the future.

9. If the GameStop customer elects Option 1, he receives

20 percent less value in the cash exchange than he would have

received pursuant to the part payment offered by Option 2 or the

credit toward a future purchase offered by Option 3.

10. For a customer who chooses Option 3, GameStop tracks

outstanding credits by issuing to the customer an "EdgeCard."

When the customer returns to a GameStop store and requests to

apply credits toward the purchase of a new or used item, the

GameStop salesperson can swipe the electronic strip on the back

of the EdgeCard and learn the credit amount available to the

customer.

11. The EdgeCard system merely tracks the amount of

ongoing credits available to the customer. It does not record

any request made by the customer to reserve or identify a

specific item toward which the credits will later be used.

12. The credits on an EdgeCard never expire. Once the

customer has chosen Option 3, he may go to a GameStop store or

access the GameStop website at any time thereafter and apply the

credit on his account toward the purchase of new or used items

from GameStop.

13. GameStop also offers traditional gift cards that are

purchased via cash or credit card rather than in exchange for

used articles. Purchases made using a gift card or gift

certificate are taxable for the full purchase price. 3 / When a

customer uses a gift card to purchase an item at a GameStop

store, GameStop does not reduce the taxable sales price by the

amount of the credit or value stored on the gift card and used

in the purchase.

14. GameStop assigns no redeemable cash value to the

EdgeCard or to traditional gift cards.

15. GameStop does not allow a gift card to be used to

store credits obtained through the exchange of used items,

reserving that function exclusively to the EdgeCard. The value

of a GameStop gift card can be redeemed only through the

purchase of new or used items from GameStop.

16. Credits can be added to an EdgeCard only by turning

over used articles to GameStop. A customer may not purchase

credits. A credit on an EdgeCard can only be redeemed by the

subsequent purchase of new or used items from GameStop.

17. The GameStop customer who selects Option 3 first

submits his used game or item of hardware to the GameStop store,

which assigns it a dollar value and credits that amount to the

customer's EdgeCard account in exchange for the item. At some

later date, the customer returns to the GameStop store and

trades the credit stored on the EdgeCard for some used or new

item. The customer may build up credits on the EdgeCard with

any number of transactions over any length of time before

trading in the credits for an item from GameStop. The customer

is not required to identify the item toward which he wishes to

apply his EdgeCard credits until the time he actually trades the

credits for the item.

18. The Edge Card system replaced GameStop's former

practice of requiring a customer who chose to obtain a credit

for the submission of used articles to retain a cash register

receipt showing the amount of the credit. This "paper credit"

would then be redeemable toward the purchase of another item at

a later date.

19. There is no expiration date on an EdgeCard, a gift

card, or a paper credit.

20. GameStop does not replace the credits on a lost

EdgeCard or a lost gift card.

21. For purposes of accounting, GameStop carries

unredeemed EdgeCard credits on its books for a period of three

years as customer liabilities. GameStop does the same for

unredeemed value on gift cards.

22. GameStop continues to honor unredeemed EdgeCard

credits and gift card values that are more than three years old,

but no longer carries them on its books as customer liabilities.

23. Prior to 2007, for the purpose of collecting sales tax

from its customers, GameStop deducted the value of EdgeCard or

any paper credits used in the purchase of new or used items from

the purchase price for the purpose of calculating sales tax due.

24. GameStop has remitted to the Department tax for the

entire sales price of new or used items purchased from

approximately January 2007 through August 31, 2007, in response

to an audit by the Department, without reducing the taxable

sales price by the value of any EdgeCard or paper credits used.

25. GameStop has a return policy that allows a customer

who is not satisfied with an item purchased from GameStop to

return the item within a certain period of time and under

certain conditions.

26. When a customer returns an item in compliance with

GameStop's return policy, the customer receives full retail

value back, including the amount of the tax paid on the original

purchase. A customer who returns an item in compliance with

GameStop's return policy can elect to receive the return value

in the form of cash, as a reimbursement to the customer's credit

card, or as value stored on a GameStop merchandise card. The

GameStop merchandise card does not record credits received via

the return of used articles.

27. The Department states that its historical

administration and interpretation of the Rule and the statutes

it implements do not strictly limit trade-in credits to a

simultaneous exchange situation, or to transactions occurring

within any particular time frame. However, the Department

states that it does require the customer to identify the

merchandise to be purchased with the EdgeCard credits at the

time the credits are acquired. The Department does not consider

the transaction to constitute a "trade-in" unless the item to be

purchased with the EdgeCard credits has been specifically

identified by the customer at the time the customer first

returned a used item to GameStop.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.56(1) and (3), Florida

Statutes.

29. Section 120.56 provides in pertinent part:

(1) GENERAL PROCEDURES FOR CHALLENGING

THE VALIDITY OF A RULE OR A PROPOSED RULE.--

(a) Any person substantially affected by

a rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an

administrative determination must state with

particularity the provisions alleged to be

invalid with sufficient explanation of the

facts or grounds for the alleged invalidity

and facts sufficient to show that the person

challenging a rule is substantially affected

by it, or that the person challenging a

proposed rule would be substantially

affected by it.

* * *

(3) CHALLENGING EXISTING RULES; SPECIAL

PROVISIONS.--

(a) A substantially affected person may

seek an administrative determination of the

invalidity of an existing rule at any time

during the existence of the rule. The

petitioner has a burden of proving by a

preponderance of the evidence that the

existing rule is an invalid exercise of

delegated legislative authority as to the

objections raised.

30. The parties have stipulated that GameStop has standing

to bring this challenge to Florida Administrative Code Rule 12A-

1.074. The stipulated facts established that GameStop is a

registered dealer with the obligation to collect and remit sales

tax from its Florida customers, and that as such GameStop is

directly affected by the challenged rule. Thus, GameStop has

standing to bring this rule challenge.

31. As the moving party asserting the affirmative by

attacking the validity of an existing agency rule, GameStop in

this case retains the burden of proof throughout the entire

proceeding. § 120.56(3)(a), Fla. Stat. See also Beshore v.

Department of Financial Services , 928 So. 2d 411, 414 (Fla. 1st

DCA 2006); Espinoza v. Department of Business and Professional

Regulation , 739 So. 2d. 1250, 1251 (Fla. 3d DCA 1999); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977).

32. The party attacking an existing rule has the burden to

prove that the Rule constitutes an invalid exercise of delegated

legislative authority. Cortes v. State Board of Regents , 655

So. 2d 132, 135-136 (Fla. 1st DCA 1995). The standard of proof

is a preponderance of the evidence. See § 120.56(3)(a), Fla.

Stat.

33. An Administrative Law Judge may invalidate an existing

Rule only if it is an invalid exercise of delegated legislative

authority. See § 120.56(1)(a) and (3)(a), Fla. Stat.

34. Section 120.52(8) defines "invalid exercise of

delegated legislative authority" to mean:

[A]ction which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or;

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is

necessary but not sufficient to allow an

agency to adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

35. In the Amended Petition, GameStop alleged that

subsections (1) and (2) of Florida Administrative Code Rule 12A-

1.074 enlarge, modify or contravene the specific provisions of

the laws implemented, and are arbitrary or capricious. In its

proposed final order, GameStop narrowed its argument to an

assertion that the Rule modifies and contravenes Section 212.09,

Florida Statutes, and enlarges Section 212.02(16), Florida

Statutes. However, GameStop did not abandon its contention that

the Rule is arbitrary or capricious, which will be considered

below.

36. The parties have agreed that neither Option 1 nor

Option 2 set forth in Finding of Fact 8, supra , implicates the

Rule. Under Option 1, no trade-in occurs because the customer

is simply selling his used item to GameStop. Under Option 2,

the value of the used item taken in trade is immediately applied

to the purchase of a new item from GameStop. The Department

agrees that where the trade-in occurs at the time of sale, the

value of the trade-in is deducted from the selling price and

thus not subject to sales tax. See § 212.02(16), Fla. Stat.

See also Fla. Admin. Code Rule 12A-1.018(2)("Trade-ins or

discounts allowed and taken at the time of sale are deducted

from the selling price, and the tax is due on the net amount

paid at the time of sale.").

37. The dispute concerns Option 3, in which the customer

receives a credit for the value of the used item that may be

applied toward the purchase of new or used items from GameStop

at some time in the future via the EdgeCard device that counts

the accumulating credits.

38. GameStop argues that the Rule operates to make the

total purchase price taxable in these situations because the

EdgeCard credit is not generated "at the time of sale" and

because the credit is created as part of a "separate or

independent" transaction from the final sale of new merchandise

by GameStop to the customer. GameStop contends that this result

is contrary to the mandate of Section 212.09, Florida Statutes.

39. GameStop notes that Section 212.09 specifically

provides for a tax credit where used articles are taken in "a

series of trades," whereas the Rule restricts the credit to

trades taken "at the time of sale." GameStop contends that the

Rule's additional restriction operates to render Section 212.09

nugatory.

40. GameStop's reasoning is as follows. Section

212.02(16), Florida Statutes, defines "sales price" generally

for purposes of Chapter 212, Florida Statutes. Under that

definition, a trade-in or discount "allowed and taken at the

time of sale" is not included in the sales price. As noted

above, the parties agree that a trade-in occurring at the time

of sale is deducted from the sales price and not subject to tax.

41. GameStop argues that in Section 212.09, Florida

Statutes, the Legislature has enacted an entire statute

specifically dealing with trade-ins that expands upon the

general definition found in Section 212.02(16). The general

definition simply refers to "trade-ins or discounts" that occur

"at the time of sale." Section 212.09 does not address all

trade-ins. It is limited specifically to "used articles,

accepted and intended for resale." As to those specific

articles, Section 212.09 expands the temporal limitation imposed

by Section 212.02(16). The "at the time of sale" restriction no

longer applies because Section 212.09 allows for "a series of

trades" to occur over time and to constitute creditable items

against the price of the new article.

42. GameStop notes the basic rule of statutory

construction that words used in a statute are to be given their

plain meaning. Courson v. State , 24 So. 3d 1249, 1251 (Fla.

2009) ("One of the first rules of statutory construction is that

the plain meaning of the statute is controlling."). See also

Jackson County Hospital Corp. v. Aldrich , 835 So. 2d 318, 328-

329 (Fla. 1st DCA 2002) ("In construing a statute, the plain

meaning of the statutory language is the first consideration.").

The plain language of Section 212.09 allows the deduction for "a

series of trades," but the statute provides no definition for

the term "series." Where the statute provides no definition, it

is appropriate to refer to dictionary definitions when

construing the statute in order to ascertain the plain and

ordinary meaning of the words used therein. School Board of

Palm Beach County v. Survivors Charter Schools, Inc. , 3 So. 2d

1220, 1233 (Fla. 2009). One dictionary defines the word

"series" to mean "a group or number of related or similar

things, events, etc., arranged or occurring in a temporal,

spatial, or other order of succession; sequence." 4 / Another

dictionary defines the term as "a number of things or events of

the same class coming one after another in spatial or temporal

succession." 5 /

43. GameStop argues that the definition of "series"

naturally contemplates that "a series of trades," all properly

credited against the price of the purchased article, will occur

in succession over a period of time. There can be no other

meaning to the term "a series of trades." GameStop contends

that the Rule improperly conflates the two statutes it purports

to implement. The Rule appends the "at time of sale" language

of Section 212.02(16) to the criteria of Section 212.09, with

the absurd result that credit is allowed only if the "series of

trades" contemplated by Section 212.09 all somehow occur "at the

time of sale."

44. GameStop further argues that the Rule's statement that

a "separate or independent sale of tangible personal property is

not a trade-in" effectively prevents a deduction where there is

a series of transactions that begins with one or more used

articles being turned in to the merchant for a cumulative credit

against the eventual purchase of a new item. GameStop asserts

that the plain language of Section 212.09 contemplates and

allows such a deduction.

45. GameStop is correct that, by limiting trade-in

deductions to those trades occurring "at the time of sale," the

Rule effectively negates Section 212.09. If the only allowable

trade-ins are those occurring "at the time of sale," then the

general definition of Section 212.02(16) is entirely sufficient;

Section 212.09 has no independent effect and is statutory

surplusage. 6 It is impermissible for the Department to ignore,

and thereby effectively eliminate, statutory terms used by the

Legislature. It is an "elementary principle of statutory

construction that significance and effect must be given to every

word, phrase, sentence, and part of the statute if possible, and

words in a statute should not be construed as mere surplusage."

Survivors Charter Schools , 3 So. 3d at 1233, quoting Gulfstream

Park Racing Association v. Tampa Bay Downs, Inc. , 948 So. 2d

599, 606 (Fla. 2006).

46. Section 212.02, Florida Statutes, provides: "The

following terms and phrases when used in this chapter have the

meanings ascribed to them in this section, except where the

context clearly indicates a different meaning." The definition

of "sales price" in Section 212.02(16) thus stands as the

general definition of the term, including as that term is used

in Section 212.09, Florida Statutes. Section 212.09's

description of what is to be deducted from the "sales price"

must be read to mean a deduction other than that which is

already deducted by operation of Section 212.02(16): a trade-in

taken at the time of sale. By adding the phrase "at the time of

sale" to the Rule, the Department has limited the deduction to

that authorized under Section 212.02(16). By making no

provision for the additional deduction mandated by Section

212.09, the Department has modified and contravened the

provisions of that statute.

47. The Legislature included the term "at the time of

sale" in Section 212.02(16), and did not include the term in

Section 212.09. "[T]he presence of a term in one portion of a

statute and its absence from another argues against reading it

as implied by the section from which it is omitted." St. George

Island, Ltd. v. Rudd , 547 So. 2d 958, 961 (Fla. 1st DCA 1989).

The Rule operates to import "at the time of sale" into Section

212.09, a change that would render Section 212.09 an unnecessary

and ineffective restatement of Section 212.02(16). See State v.

Mark Marks, P.A. , 698 So. 2d 533, 541 (Fla. 1997)(legislative

use of different terms in different portions of the same statute

is strong evidence that different meanings were intended). 7

48. According to GameStop, the only construction that

gives meaning to all of the statutes implemented by the Rule is

that the taxable sales price must include a deduction both when

an item is traded in and the value is immediately applied to a

sale, and when the customer purchases a new or used item using

credit previously obtained from a "series of trades" of used

items. GameStop's argument is persuasive that the inclusion of

"at the time of sale" in the Rule constitutes an effective

modification and contravention of Section 212.09, Florida

Statutes.

49. Finally, GameStop argues that the Rule improperly

expands the Department's taxing authority through the addition

of the restriction that "a separate or independent sale of

tangible personal property is not a trade-in, even if the

proceeds from the sale are immediately applied by the seller to

a purchase of new articles of tangible personal property." The

exclusion of these "separate or independent sales" from the

deduction serves to negate the statutory mandate that the

deduction be calculated when there has been a series of trades.

GameStop notes that the Department lacks the power to enact a

rule restricting deductions that are specifically provided for

by statute. Golden West Financial Corporation v. Department of

Revenue , 975 So. 2d 567, 571-572 (Fla. 1st DCA 2008). For

reasons stated below, this portion of GameStop's argument is not

persuasive.

50. In defense of the Rule, the Department states that the

real controversy in this matter arises from a dispute over the

meaning of the terms "taken in trade" and "trade-in," which

appear both in the Rule and in the statutes implemented by the

Rule. The Department states that the Rule does not preclude

credit for a "series of trades," if they constitute a "bona

fide" trade-in transaction. According to the Department,

GameStop's analysis is focused on the definition of "series,"

but does not adequately address the definition of "trade" or

"trade-in."

51. Dictionary definitions of the term "trade-in" refer to

merchandise accepted as payment or part payment for another item

of merchandise. Webster's Ninth New Collegiate Dictionary

(1985) defines the term "trade-in" to mean "an item of

merchandise (as an automobile or refrigerator) taken as payment

or part payment for a purchase." The American Heritage

Dictionary of the English Language, Third Edition (1992) defines

the "trade-in" as: "merchandise accepted as partial payment for

a new purchase; a transaction involving such merchandise." The

Department points to these standard definitions and observes

that the term "trade-in" does not include intangible "credits"

arising from earlier sales transactions which are "separate or

independent" from the purchase .

52. The Department's position is that unless the new item

to be purchased is identified at the time the used item is

turned in for an EdgeCard credit, nothing has been "traded"

under the ordinary meaning of "trade-in." Therefore, purchases

made with EdgeCard credits would not fall under the plain and

ordinary meaning of a "trade-in" because the credits did not

arise from an exchange involving an identified purchase.

53. The Department's view of "trade-in" is unduly

restrictive, adding a requirement of simultaneity that is not

present in the dictionary definitions. The definitions cited by

the Department place no temporal restrictions on the

transactions. The definition in Webster's Ninth New Collegiate

Dictionary provides that a trade-in is "an item of merchandise

taken as payment or part payment for a purchase." The

definition does not require that the purchase occur

simultaneously with the taking of the item in payment. 8 / Nothing

in the dictionary definition of "trade-in" necessarily excludes

the EdgeCard credit.

54. The relevant definition of the term "sale" is found at

Section 212.02(15)(a), Florida Statutes: "Any transfer of title

or possession, or both... of tangible personal property for a

consideration." The Department contends that the tender of used

items for EdgeCard credit does not constitute part of a future

"sale" because possession of the item to be purchased with the

EdgeCard credit does not transfer to the customer at the time of

tender. According to the Department, EdgeCard credits cannot be

part of any future sale unless there is an identification of the

item to be acquired in trade, at the time that the trade-in is

"allowed and taken."

55. For example, if a customer delivered used games to

GameStop for EdgeCard credits, and then a year later decided to

purchase a new game using those credits, these transactions

would not constitute a "trade-in" or an item "taken in trade"

within the "normal and customary" understanding of those

phrases. The item eventually purchased might be a new release

that did not even exist at the time the used games were tendered

to GameStop. The customer might never make a subsequent

purchase, meaning there would never be a "trade-in" at all. The

acquisition of EdgeCard credits, and the purchase of merchandise

a year later, would be "separate or independent transactions," 9 /

not trade-ins, because the future sale was not identified at the

time the trade-in was taken. The Department argues that the

pertinent statutes impose this restriction by allowing

deductions only for items "taken in trade" or constituting a

"trade-in." The Rule merely implements and clarifies this

statutory scheme.

56. The Department goes on to argue that the Rule does not

preclude a "series of trades" from constituting a trade-in. If

the new or used item to be purchased with the "series of trades"

is identified, then each item returned to GameStop for credit

during the series of transactions may be treated as a bona fide

trade-in. Under the Rule, there can still be a series of

trades, but there must be an individually identifiable sales

transaction to which each such trade-in was tendered and is to

be applied. The Department states that if GameStop would modify

its system to match used videos and games returned to GameStop

with identified new items to be purchased with the EdgeCard

credits, as in a lay-away plan, then the "series of trades"

would be treated by the Department as a bona fide trade-in under

the Rule.

57. The Department's argument is not persuasive. It

begins with the flawed assumption that the definition of "trade-

in" requires that the exchange of a used for a new item occur

simultaneously. As noted in Conclusion of Law 52, supra , this

assumption is not supported by the very dictionary definitions

cited by the Department.

58. The Department claims that the EdgeCard credits cannot

be part of a future "sale" because the customer does not take

possession of the new item at the time he obtains the credit.

This claim is based solely on the "allowed and taken at the time

of sale" language in Section 212.02(16), without reference to

the "series of trades" language of Section 212.09 that expands

the temporal reach of the trade-in process.

59. First, the Department first asserts a problem: no

trade-in can occur because possession of the item to be

purchased with the EdgeCard credit does not transfer to the

customer at the time the credit is obtained. Next, the

Department proposes a solution that does not address the

asserted problem. Even if the customer identifies the specific

item to be acquired in trade, he still has not taken possession

of the item. Despite having identified the new or used item he

intends to purchase, the customer may never take possession of

the item and may never use the EdgeCard credits at all. The

manufacturer may cease production of the identified item before

the customer is able to purchase it using his EdgeCard credits.

60. By entering the EdgeCard program and accumulating

credits, the customer has made a commitment to purchase some new

item from GameStop in the future. He may not use the credits

anywhere other than at a GameStop store or the GameStop website.

The Department has failed to explain the significance of forcing

this customer to identify the particular item he intends to

purchase from GameStop, aside from the irrelevant observation

that the transaction would then more closely resemble a layaway

plan. 10 / The Department's position is supported only by a strict

reading of Section 212.02(16), Florida Statutes, in isolation.

Like the Rule itself, the Department's argument affords no

significance to Section 212.09, Florida Statutes.

61. The Department disputes GameStop's contention that the

Rule renders inoperative the "series of trades" language of

Section 212.09, Florida Statutes. The Department contends that

the Rule permits a series of trades to be used as a trade-in

towards a purchase of one or more items of tangible personal

property, but only when the trade-in articles are tendered

toward the purchase of an identifiable item of tangible personal

property. If the used articles are not tendered toward any

particular, identifiable item, then they are being sold for

credits, not traded-in. EdgeCard credits themselves are not

"merchandise" and therefore could not be turned in to constitute

a "trade-in" within the plain and ordinary meaning of the term.

62. The Department again fails to explain the legal or

practical significance of identifying the item of tangible

personal property to be purchased. According to the

Department's own theory, no "trade-in" can occur absent the

transfer of possession of the new item; the trade-in must be

"allowed and taken at the time of sale." However, the customer

does not take possession of a new item by merely identifying it,

meaning that the Department's proposed solution does not solve

the Department's problem. The Department's position that the

customer has "sold" his used items for credits might be more

persuasive if those credits had value anywhere besides

GameStop. 11 / The EdgeCard commits the customer to use the

credits for the used items to purchase an article of tangible

personal property at GameStop. The Department gives no

persuasive reason for requiring the extra step of identifying

the particular item of tangible personal property prior to

purchase.

63. The Department considers the EdgeCard to be a type of

cash equivalent, analogous to a gift card. Florida

Administrative Code Rule Section 12A-1.089 treats the purchase

of a gift card as non-taxable, with the subsequent use of the

gift card being fully taxable. It is the Department's position

that the EdgeCard as currently used by GameStop is a gift card

to be treated under the gift card rule, rather than a means for

recording a series of bona fide trade-ins.

64. The Department notes the following "close

similarities" between the EdgeCard and a traditional gift card:

neither has an expiration date; neither is replaced if lost;

each can only be used to purchase in-store merchandise; neither

has a redeemable cash value; and each is reported for three

years by GameStop as a customer liability.

65. The Department fails to note a significant

dissimilarity between the EdgeCard and the traditional gift

card: the credits on the EdgeCard are obtained not through cash

purchases but through the return of used items. It is safe to

assume that as to most if not all of these used items, the

original purchaser paid sales tax when he bought the item.

Though neither party discussed the issue, as a matter of common

sense it appears that some part of the justification for

allowing the sales tax exemption on trade-ins is that in most

cases the customer has already paid tax on the item traded in.

Unlike the traditional gift card, with the EdgeCard there is a

sense that taxing a credit derived from the return of a used

item might constitute double taxation.

66. The Department contends that these disagreements over

what constitutes a bona fide "trade-in" and what constitutes a

"gift card" concern the validity of the Department's application

of the Rule to a particular set of facts, not the validity of

the Rule itself. The Department states that "nothing in the

Rule creates a presumption that EdgeCard transactions constitute

"trade-ins" or that they do not. Likewise, nothing in the Rule

creates a presumption whether the EdgeCard is a gift card or

not. There are no examples in the Rule as to what constitutes a

bona-fide trade-in and what does not. There are no examples in

the Rule as to what constitutes a gift card and what does not.

Therefore, the Rule does not appear to prejudice [GameStop] in

any way when asserting its various legal arguments in any future

assessment challenge [pursuant to Section 72.011, Florida

Statutes.]" Whether any particular transaction is a "trade-in"

or a "separate or independent sale" is a question of fact to be

determined in the assessment challenge.

67. The Department's position is that the Rule does not

create any presumptions as to which transactions are to be

considered "separate or independent sales." The Rule merely

states that the determination of whether the transactions are

"separate or independent sales" must be made. Thus, the Rule

imposes no additional burden beyond what is already in the

statutory requirement that there must be a bona fide "trade-in."

68. The Department's defense of the "at the time of sale"

language of the Rule is not persuasive. The Department's

reliance on its narrow interpretation of the dictionary

definition of "trade-in" would at least be logical if it took

the position that the EdgeCard program is untenable under the

Rule and the implemented statutes: only merchandise exchanged

for merchandise at the time of sale can constitute a trade-in;

credits can never constitute a trade-in; therefore, the entire

concept of the EdgeCard fails to meet the criteria for an

exemption from sales tax.

69. However, the Department understands that the only way

to save the Rule is to reconcile "at the time of sale" with "a

series of trades." In the attempt to effect this

reconciliation, the Department has amended the "merchandise for

merchandise" requirement and pronounced that the Rule is

satisfied by "merchandise for the promise of specific,

identified merchandise." If the GameStop customer has

identified the specific item of merchandise to which he intends

to apply his EdgeCard credits, he may engage in a series of

trade-ins prior to making the actual purchase of the new item.

70. As set forth at length above, the Department's

"identify the merchandise" scheme does not even satisfy its own

objections to the EdgeCard system. Further, from the customer's

viewpoint, nothing in the language of the Rule would permit a

taxpayer to infer that he might lessen his sales tax liability

by identifying the specific item he intends to purchase at some

time in the future with his accumulated EdgeCard credits. An

agency's interpretation of its own rule is entitled to great

deference. Citizens of the State of Florida v. Wilson , 568 So.

2d 1267, 1271 (Fla. 1990). However, such deference is not

required where the agency's interpretation is clearly erroneous.

Miles v. Florida A&M University , 813 So. 2d 242, 245 (Fla. 1st

DCA 2002).

71. In this instance, the Department is not interpreting

the Rule so much as adding criteria that are not discoverable in

the Rule's text. When the Department "interprets" its Rule to

mean something other than what the plain language of the rule

states, it acts in an arbitrary fashion. 12 Such deviation from

the text of the Rule violates a foundational principle behind

the Administrative Procedure Act, that "an agency cannot change

its standards at the personal whim of a bureaucrat." Courts v.

Agency for Health Care Administration , 965 So. 2d 154, 159 (Fla.

1st DCA 2007). 13 /

72. The Department ignores the contradiction that makes

compliance impossible for a taxpayer in GameStop's position:

that the statutory term "a series of trades" cannot have any

independent meaning if the "series of trades" can only be

performed "at the time of sale." GameStop has offered a

reasonable reading of the statutes that harmonizes the

provisions of Section 212.02(16), Florida Statutes, with those

of Section 212.09, Florida Statutes. The Department's reading

of the statutes has resulted in a Rule that, if limited to its

plain language, effectively negates Section 212.09, Florida

Statutes.

73. The Department's defense of the "separate or

independent sale" language of the Rule is adequate. The

Department interprets this language as a way of explaining the

statutory terms "taken in trade" and "trade-in," by offering an

example of what is not a trade-in. Stripped to its essentials,

the sentence in question states, "A sale is not a trade-in."

This language is not necessarily illuminating or even helpful.

It is very nearly tautological. However, standing alone, it is

not in conflict with the statutes implemented by the Rule. 14 /

74. For the reasons explained above, it is concluded that

the Rule contravenes, modifies and enlarges upon the

Department's statutory authority. In particular, the Rule

modifies and contravenes the provisions of Section 212.09,

Florida Statutes.

75. The Department has acted arbitrarily in "interpreting"

the Rule in a way that is at odds with the Rule's plain language

as regards the "identify the merchandise" requirement. However,

absent the Department's arbitrary insertion of a nonexistent

provision, it cannot be concluded that the Rule itself is

arbitrary or capricious.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

ORDERED that Florida Administrative Code Rule 12A1.074(1) &

(2) constitutes an invalid exercise of delegated legislative

authority within the meaning of Section 120.52(8)(c), Florida

Statutes.

DONE AND ORDERED this 4th day of May, 2010, in Tallahassee,

Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May, 2010.

ENDNOTES

1 / Subsection (3) of Florida Administrative Code Rule 12A-1.074

provides:

(3) When title or possession of tangible

personal property is transferred for a

consideration other than cash, the property

transferred is taxable at its full retail

value. See Section 212.02(16), F.S. For

example, a lumber dealer who trades some

lumber for real property must collect tax

from the former owner of the real property.

If he fails to do so, he is liable for

payment of the tax himself under Section

212.07(2), F.S.

Subsection (3) was not challenged by GameStop and is not at

issue in this proceeding.

2 / Subsection (3) of Section 212.09, Florida Statutes,

establishes an exception for a non-dealer in the sales of

aircraft, boats, mobile homes, or vehicles. It is not relevant

to this proceeding. Throughout this Recommended Order,

citations to "Section 212.09" will be understood to reference

only subsections (1) and (2) of that statute.

3 / Florida Administrative Code Rule 12A-1.089 provides, in

relevant part:

The sale of a gift certificate is not

taxable. When the owner of a gift

certificate redeems it for tangible personal

property, or a part thereof, the transaction

is taxable as a sale. For example, if the

owner of a gift certificate valued at $25

purchases a $15 pair of shoes, tax of 90

cents must be collected by the dealer and

remitted to the Department of Revenue....

4 / Dictionary.com Unabridged, based on the Random House

Dictionary (2010).

5 / Merriam-Webster On-Line Dictionary (2010), found at

www.merriam-webster.com/dictionary.

6 / GameStop further observes that the Department has adopted an

entirely separate rule that implements Section 212.02(16) with

respect to those trade-ins that are immediately applied to the

purchase of a new item. Fla. Admin. Code R. 12A-1.018(2), the

text of which is set forth at Conclusion of Law 36, supra .

GameStop notes that by grafting onto the Rule the phrase "at the

time of sale" and adding the "separate or independent"

exception, the Department has not only eliminated the additional

tax exemption required by Section 212.09, but also adopted a

rule that merely duplicates the effect of Florida Administrative

Code Rule 12A-1.018(2).

7 / The Department observes that the "series of trades" language

of Section 212.09 dates back to the original enactment of the

Florida Revenue Act in 1949. Section 9, Chapter 26319, Laws of

Florida 1949. The "at the time of sale" language in Section

212.02(16) was enacted later, in 1965. (The Department provided

no citation to support this statement, which was unchallenged by

GameStop. The statutory history of Section 212.02 indicates

that it was amended three times in 1965: Sections 1-3, Chapter

65-329; Section 5, Chapter 65-371, and Section 2, Chapter 65-

420, Laws of Florida.) The Department argues that any conflict

between the two statutes should be resolved by finding the most

recent revision controlling. However, GameStop correctly

observes that the principle cited by the Department applies only

where two statutes are so unavoidably in conflict that there is

no reasonable interpretation that gives them both meaning.

Jordan v. Food Lion, Inc. , 670 So. 2d 138, 140 (Fla. 1st DCA

1996). In this case, GameStop has proposed a reasonable

construction of Sections 212.02(16) and 212.09 that gives

harmonious meaning to both statutes.

8 / The Department's subsequent analysis appears to acknowledge

this lack of definitional support by making reference to the

"normal and customary understanding" or the "common and ordinary

meaning" of the term "trade-in." The Department is undoubtedly

correct that it is more common than not for a trade-in to occur

at the same time as the purchase. However, the Rule and the

Department's defense thereof fail when they insist that the

trade-in must occur in this way. Section 212.09, Florida

Statutes, clearly contemplates "a series of trades" occurring

over time, and the dictionary definitions of "trade-in" do not

contradict the statute.

9 / This is the Department's language, derived from the Rule's

"separate or independent sale" language. The Department

considers each transaction in the accumulation of credits on an

EdgeCard to constitute a "separate or independent sale" rather

than a "series of trades" leading to a tax credit for the trade-

in.

10 / "Irrelevant" because the Department can point to no current

statute or rule defining "layaway plan" that would provide a

principled distinction supporting the Department's insistence

that the item to be purchased be identified at the time the

EdgeCard credits are obtained.

11 / Though the stipulated facts did not perfectly explain the

program, it appears that the EdgeCard is identified to the

particular customer, and only that customer may use the credits

on that card. The Department's "sale for credits" argument

would clearly have more force if the EdgeCards were fungible and

a secondary market for them were to develop.

12 / It is understood that agency rules are often so complex as to

defeat ready interpretation by a layperson, and that highly

technical terms may carry meaning beyond their plain language.

However, in this instance, the Department's proffered

interpretation is entirely dehors the Rule.

13 / This conclusion should not be read as indicating that the

Department lacks the statutory authority to adopt a rule

expressly requiring the customer involved in a "series of

trades" to identify the specific item he intends to purchase

from the merchant. That issue is not before this tribunal. The

conclusion is simply that it is arbitrary for the Department to

cite the present Rule as grounds for imposing such a

requirement, where the language of the Rule says no such thing.

14 / This conclusion should not be read as an endorsement of the

Department's position that the accumulation of EdgeCard credits

constitutes a series of "separate or independent sales." The

uses to which the Department might put the "separate or

independent sale" language in an assessment challenge brought by

GameStop is not at issue in this rule challenge proceeding. The

Rule is not invalidated by the Department's possibly erroneous

interpretation of it.

COPIES FURNISHED :

Martha Harrell Chumbler, Esquire

Matthew Bernier, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302-0190

Jeffrey M. Dikman, Esquire

Office of the Attorney General

The Capitol, Plaza 01

Tallahassee, Florida 32399

Marshall Stranburg, General Counsel

Department of Revenue

The Carlton Building, Room 204

501 South Calhoun Street

Post Office Box 6668

Tallahassee, Florida 32314-6668

Lisa Echeverri, Executive Director

Department of Revenue

The Carlton Building, Room 204

501 South Calhoun Street

Tallahassee, Florida 32314-6668

Scott Boyd, Executive Director and

General Counsel

Joint Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.