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Mo. SC denies 'processing' exemption to restaurants

By Jessica M. Karmasek | Apr 11, 2012



ST. LOUIS (Legal Newsline) - The Missouri Supreme Court ruled last month that a convenience store is not exempt from sales and use tax for the electricity it purchases for its food preparation operations.

Although a section in state code, Section 144.054, provides a tax exemption for the "processing" of products, the Court held in its March 6 opinion that the state Legislature did not intend the term to include retail food preparation.

The Court, therefore, reversed the decision of an administrative hearing commission.

Casey's General Stores, a convenience store that sells gas, grocery items, prepared foods and non-food items, used the electricity to power machinery and equipment to prepare food for sale.

Respondent Aquila Foreign Qualifications Corporation, a utility company selling electricity to residential and commercial customers, including Casey's, filed a sales tax refund claim on behalf of the convenience store.

In a hearing before the commission, Casey's demonstrated that its food preparation activities were "processing" as defined in Section 144.054.

The section provides that processing is "(a)ny mode of treatment, act or series of acts performed upon materials to transform or reduce them to a different state or thing, including treatment necessary to maintain or preserve such processing by the producer at the production facility..."

Casey's took raw materials, including flour, water, tomato sauce, meat and cheese, and through a series of procedures utilizing a variety of equipment, transformed the materials into a finished product -- in this case, a cooked pizza.

Appellant Missouri Department of Revenue argued that Casey's interpretation of "processing" was overly broad and would have a significant impact on state revenue.

However, the commission ruled in favor of Casey's.

In her ruling, Commissioner Karen Winn wrote, "(A)s we read the exemption we agree that it is very broad, but we can only apply the plain language of Section 144.054. The wisdom of any such exemption is for the legislature, not this commission, to decide. We cannot change the law, and must apply the law as written."

When the state Legislature added Section 144.054 in 2007, the new exemption was described as pro-business measure designed to allow Missouri to compete with surrounding states.

In overturning the commission's decision, the state's high court rejected the plain-language reading of the exemption.

Instead, it ruled that the statutory definition of "processing," as passed by the Legislature, was ambiguous.

And because the term was deemed ambiguous, the Court was then allowed to determine the legislative intent.

"The industrial connotations of those terms in section 144.054.2 indicate that the legislature did not intend 'processing' to include food preparation for retail consumption. To so interpret section 144.054.2 would give it unintended breadth," Justice Mary R. Russell wrote for the Court majority.

"If the legislature intended 'processing' to encompass retail food sales by restaurants or convenience stores, it could have used terms such as 'preparing,' 'furnishing' or 'serving.' But instead it chose industrial-type terms, such as 'manufacturing,' 'processing,' 'compounding,' 'mining' or 'producing.'"

The majority said in its nine-page ruling that the legislative intent is "further reflected" in the Missouri Code of State Regulations.

"A restaurant preparing food for immediate consumption is not exempt (under Section 144.054). Therefore, all state and local taxes apply," a section of the code states, the majority noted.

In a dissenting opinion, Justice William Ray Price Jr. said the Legislature's chosen statutory definition of "processing" confirms that it intended the scope of processing to be as broad as possible.

"The term 'processing' is broad, but it is not ambiguous," Price wrote in his three-page dissent. "Its application to the activities in which Casey's engages could not be clearer."

From Legal Newsline: Reach Jessica Karmasek by email at

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