A class action complaint was filed in federal court last week against New Albertson’s, Inc. the operator of the Jewel-Osco grocery chain, alleging failure to deduct manufacturers’ coupons from the tax base on which sales tax was calculated and collected from customers. Wong v. New Albertson’s Inc. d/b/a Jewel-Osco, no. 1:15-cv-01732 (N.D. Ill.). This latest attack on a retailer relies on an interpretation of a Department of Revenue regulation that, if correct, would be overly burdensome on Illinois retailers. Other Illinois retailers that accept manufacturers’ coupons may be at risk of being sued in similar actions or may be forced to change their practices.

The Illinois sales tax, the Retailers’ Occupation Tax, is a tax on a retailer’s gross receipts. Store coupons, where a retailer does not receive reimbursement from another party, constitute a reduction in a retailer’s gross receipts and therefore reduce the tax owed. 86 Ill. Admin. Code 130.2125(b)(1). Manufacturers’ coupons, on the other hand, involve reimbursement to a retailer from a third party. This reimbursement constitutes taxable gross receipts. 86 Ill. Admin. Code 130.2025(b)(2). As such, manufacturers’ coupons do not decrease the amount of Retailers’ Occupation Tax owed by the retailer.

An Illinois retailer collects Use Tax from its customer as reimbursement for its Retailers’ Occupation Tax. See 35 ILCS 105/3-45; 86 Ill. Admin. Code 130.101(d). The difficulty with manufacturers’ coupons is that the customer has not paid the entire amount of the retailer’s receipts on which Retailers’ Occupation Tax is due. The Department’s regulation addresses the issue by calling for the customer to assume liability for Use Tax in the fine print of the coupon:

Technically, the coupon issuer … owes the corresponding Use Tax on the value of the coupon.  However, in many cases, the coupon issuer incorporates language into the coupon that requires the bearer … to assume this Use Tax liability.  86 Ill. Admin. Code 130.2025(b)(2).

The theory of the complaint is that the coupon did not contain this language shifting the Use Tax liability, and therefore it was improper of the retailer to collect tax on the coupon amount. If the class action attorneys’ theory is correct, store clerks would be expected to carefully read the fine print of each and every coupon that customers present.  Surely, the Department of Revenue could not have intended such a result.  The complaint seeks compensatory damages, punitive damages of at least 1 percent of the revenue from Illinois stores during years in which violations occurred, and fees and costs. Other retailers may risk similar suits and should consider seeking clarity from the Department of Revenue.