APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER III, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
The plaintiff Sta-Ru Corporation filed a complaint in the Circuit Court of Macon County seeking injunctive relief against George E. Mahin, Director of Revenue of the Department of Revenue of the State of Illinois, William J. Scott, Attorney General of the State of Illinois, and Alan J. Dixon, Treasurer of the State of Illinois. Plaintiff alleged that it is engaged in the business of selling food and beverages at retail and that it purchased paper and plastic plates, bowls, dishes and cups from certain suppliers. It further alleged that the Department of Revenue pursuant to Rule 51 of its rules and regulations was seeking to collect taxes on the purchase of these items.
The Department claimed its authority under the Retailers Occupation Tax Act (ROTA) (Ill. Rev. Stat. 1971, ch. 120, par. 440 et seq.), the Municipal Retailers Occupation Tax (Ill. Rev. Stat. 1971, ch. 24, par. 8-11-1), the County Retailers Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 34, par. 409.1), and the Use Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 439.1 et seq.).
The plaintiff alleged that Rule 51 as applied to the purchase of the items listed above was void. After an evidentiary hearing on the merits, the trial court entered an order for the issuance of an injunction prohibiting the defendants Mahin and Scott from enforcing the taxes against plaintiff. Those defendants appeal.
• 1 The first three of the foregoing acts tax the occupation of selling goods at retail. The Use Tax Act taxes the use in this State of tangible personal property purchased at retail and is supplementary to the various sales tax acts. To the extent that a retailer remits under the Use Tax Act, he is not required to remit under the sales tax acts (Turner v. Wright, 11 Ill.2d 161, 142 N.E.2d 84, appeal dismissed, 355 U.S. 65, 2 L.Ed.2d 106, 78 S.Ct. 140). The terms used have the same meaning under each of the acts. We need, therefore, discuss only the operation of the ROTA. Section 1 of that act provided in pertinent part:
"`Sale at retail' means any transfer of the ownership of or title to tangible personal property to a purchaser, for the purpose of use or consumption and not for the purpose of resale in any form as tangible personal property to the extent not first subjected to a use for which it was purchased, for a valuable consideration: * * *." (Ill. Rev. Stat. 1971, ch. 120, par. 440.)
"3. Sales for Use or Consumption * * * Sales of paper napkins, drinking straws, paper cups and paper plates to restaurants (including drive-in restaurants) and other vendors of food or beverages for use on the premises as serving equipment in lieu of more durable kinds of serving equipment (such as linen napkins, metal drinking straws, glass or porcelain cups and plates) are taxable retail sales. Sales of paper napkins, drinking straws, paper cups and paper plates to food or beverage vendors are non taxable sales for resale if the items are resold for a direct and specific charge, or if the items are employed as containers for food or beverages contained therein and are transferred with the food or beverages to the purchaser thereof either by being delivered by the food or beverage vendor away from his premises to his customers or by being delivered on the premises of the food or beverage vendor to customers who take the packaged food or beverages away from such premises with them for consumption elsewhere (i.e., the so-called `carry out trade'). In general, it may be assumed that paper sacks, boxes, cartons and paper cups with lids, when sold to a food or beverage vendor, are for resale within the meaning of this paragraph. The same is true of paper cups which are used in serving beverages or other tangible personal property from a vending machine." (Emphasis added.)
The principal question to be decided is whether the provisions of section 3 of Rule 51 purporting to make sales of containers to plaintiff subject to tax if they are used to contain food and beverage consumed by its customers on its premises as applied to its method of operation is in violation of the provisions of section 1 of ROTA which exempts sales for "resale."
The undisputed evidence was that plaintiff operated six fast food restaurants in Decatur selling "soft cream, soft ice milk or soft ice cream, and Coca Cola, soft drinks, hamburgers and et cetera." It used the items sold to it in the transactions for which tax is claimed as nonreusable containers for the products sold to its customers. Its customers sometimes consumed the food and drink on the premises and sometimes off the premises. The president of plaintiff was asked if the ownership of the containers passed to the customer at the time of sale. He answered in the affirmative. He also testified that, although no one had ever asked to receive a reduced price for food or drink, because that person furnished his own container, the price would be reduced if so requested.
The trial judge, in the order for the injunction, found the imposition of the tax in question to be "double taxation." Since the sales by plaintiff to its customers would obviously be subject to tax under ROTA, the implication of the judge's finding is that he found the containers to be sold by plaintiff to its customers along with their contents even when consumed on the premises and that, therefore, the sales of these items to plaintiff were for "resale."
Defendants support the validity of the provision of Rule 51 determining that on premises sales do not constitute resales on the basis that when not required to be used to take the food and beverages from the premises, the containers are not part of the product sold but an amenity furnished to the customer for which no charge is made. They contend that if disposable containers were not furnished plaintiff would have to use durable dishes and cups.
• 2 Defendants rely primarily on the cases of Theo. B. Robertson Products Co. v. Nudelman, 389 Ill. 281, 59 N.E.2d 655, and American Airlines, Inc. v. Department of Revenue, 58 Ill.2d 251, 319 N.E.2d 28. The question at issue in Robertson Products Co. was whether sales of tissue paper, napkins, paper cups, soap and similar items to hotels, office building operators and like establishments, to be furnished to their patrons and tenants without a separate charge, constituted a sale at retail, or, on the other hand, one for resale within the meaning of ROTA. The court held the sales to be at retail and not for resale and, thus, subject to tax. In American Airlines, Inc., sales of prepared meals to an airline to be served to their passengers without special charge beyond the price of the ticket was also held to be subject to tax. Both opinions gave importance to the lack of a special charge for the items for which resale was claimed. In American Airlines, Inc., the court noted that in Fefferman v. Marohn, 408 Ill. 542, 97 N.E.2d 785, it was stated:
"This court held that the vendors were liable for the ROT on the sales, stating: `We think it follows from a consideration of Robertson Products Co. v. Nudelman, 389 Ill. 281, * * * that a sale is one for use and consumption and not for resale, even though the purchaser transfers the commodity purchased, provided he does not transfer it for a direct and specific consideration.' Fefferman v. Marohn, 408 Ill. 542, 547, in accord, Modern Dairy Co. v. Department of Revenue, 413 Ill. 55, 62-63." (58 Ill.2d 251, 257, 319 N.E.2d 28, 32.)
If this statement is given a broad interpretation, the separate sales to plaintiff by its suppliers of hamburger meat and buns would be subject to tax because in selling hamburgers plaintiff does not charge a separate price for the meat and the bun. Obviously, no such interpretation is intended. The major thrust of these opinions is that the entity making the purchase for which tax is sought is not in the business of selling goods but as in Robertson Products Co. is providing rooms for tenants and guests and in American Airlines, Inc., is providing transportation for passengers. The transfer of the goods is an amenity of the service performed and its cost, a general cost of doing business rather than a cost of goods sold. The existence of a separate charge for the transfer of the goods to the customer would separate that transaction from the principal transaction of furnishing rooms or transportation and make the transfer of the goods a resale. In the instant case, it is not necessary for the transfer of the containers to be separated from the principal transaction involved to make that transfer a resale because the principal transaction is itself a ...