L & R Distributing v. Missouri Department

This action involves the validity of Revised Rule No. 49 of the Revenue Department which, for the first time, construed §
144.020.1(2) of the Sales and Use Tax Law as imposing the tax upon the gross receipts of coin-operated devices such as pinball
machines. 1 The applicable portion of this statute is as follows: "A tax equivalent to three percent of the amount paid
for admission and seating accommodations, or fees paid to, or in any place of amusement, entertainment or recreation, games
and athletic events"; that subdivision has been in its identical form since 1937. Plaintiffs are the owners and operators
of various pinball machines and other coin-operated devices. They filed this declaratory judgment action seeking to invalidate
the Revised Rule, for an injunction, and for the return of sales taxes paid under protest since May 1, 1974. Their theory
is, as stated, that the statute does not impose a tax upon these proceeds and that the Rule is arbitrary and in violation
of the statute; defendants, by answer, admitted all formal allegations, admitted that they had collected no sales tax on such
proceeds until (after) April 30, 1974, but asserted that the Revised Rule embodied a correct construction of the statute,
and that the tax was properly collected. The issue does not require a more elaborate review of the pleadings. We have jurisdiction because the construction of a Revenue Law is required. The parties stipulated all the necessary facts,
except those already admitted in the pleadings. They are, in substance, as follows: that the plaintiffs own and operate pinball
machines and other coin-operated devices in St. Louis and St. Louis County, which are placed in "restaurants, confectionaries,
bowling alleys, hotesl, motels, bus stations, airports and other similar places * * *"; that they receive a percentage of
the gross receipts; that in 1937 the Attorney General rendered an opinion which is incorporated into the stipulation as an
exhibit; that the Revenue Department has issued Rules construing the statutes "and in so doing promulgated Rule No. 49 (issued
in 1972 as a successor to prior rules dating back to 1934) which specifically exempted receipts derived from pinball and other
slot machines (which provision, or similar provisions, was included in the said prior rules dating back to 1939)"; that copies
of such Rules were attached as exhibits; that the Department did not attempt to collect a tax on such proceeds from 1937 to
1974, nor was such its practice, and that, on information, the same was true from 1933 to 1937; that effective May 1, 1974,
Revised Rule No. 49 was promulgated under which defendants are attempting to collect sales taxes upon such proceeds for the
use of such facilities; that on May 10, 1974, the Attorney General issued his opinion No. 68, a copy of which is incorporated
into the stipulation; this upheld collection of the tax on fees paid for the use of facilities such as billiard tables, pool
tables, bowling alleys "and the like"; that defendants have demanded such taxes since May 1, 1974, and plaintiffs and others
have paid such taxes under protest - pursuant to § 144.700.