case on the back this afternoon because as to the plaintiff we're talking about a dollar or two but yet the reach of this case is as broad as the reach of the other cases that the court has heard today we are here to construe retailers occupation tax and use tax and if it were simply to look at those two statutes might be an easier inquiry however the department of revenue has promulgated regulations results that didn't make a lot of sense at least to the plaintiffs and hopefully cause this court some concern as well we start with the simple promise that the taxing code and codes are strictly construed against the government both the retailers occupation tax in the use tax tax hands of all property tangible go but to tax the tangible goods that are sold as an incidental to the transaction involving services the shipping charges here are not tangible you can't touch them they don't add anything to the product they simply get the product from one place to another and only courts have dealt with cases involving shipping transactions and in some cases they have said well yes it's included in the overall price of the good hearkening to some degree back to the retailers i q patient tax definition of selling pri which is defined as the consideration valued in money or services or other items that really don't apply here and shall be determined without the doctrine on account of the cost of the property sold the cost of the of any other expenses whatsoever and reading that in its broadest possible sense that means anything regardless now if that were the meaning of the legislature that are the words any other expenses whatsoever if they did modify anything else then there would be absolutely no need for cost of materials use labor or services cost of the property sold at all because it would be encompassed within any expense whatsoever so it is clear by reading the sentence income tax that those expenses that the legislature was talking about our expenses related to bringing the goods to market because they didn't want to come up with a laundry list and say well it's only those four items the go into the cost of bringing a product to market that on the doctor won't it's any other expenses whatsoever within the context of bringing your product to market the shipping charges here are not bringing your product to market they're getting your product away from your market and because the legislature has had numerous opportunities to tax services and hasn't chosen not to do salt perhaps out of a concern though it certainly was reserved in the constitutional convention that it shouldn't be taxed here it's a fiction it's a tax services here are because they are provided by the third party and no one that i'm aware of has ever disputed that if the plaintiffs call up u p s and ship a package that's not taxed there is no sales tax on that shipping charge if the plaintiff said call dropped u p s or fed ex and go to wal mart and pick up my leaf star and bring it to me that if they could have bought the same item and it took an order well mark i think it does to some degree because it gets into the appellate court analysis and something that we can jump to that we're going to be talking about inseparable link and i don't know if you want to get right now brought the plaintiff could have gone to a wal mart and bought it they could have gone to other stores and bought it they could have ordered it from a catalog and then at the bottom of the catalog form paid shipping and handling and the department previously took the position and voted expressly into their administrative code that even though that's one transaction and you're white write one check in your son in one envelope to order the product from the mail order catalog that's a separate separately if the legislature has declared telephone services as a tangible good which is subject to tax private letter ruling oh i'm sorry and the use of the telephone is  problem there maybe i'm i'm not familiar with it but my point being that if there were a tax on the use of the telephone versus a tax on the use of the internet that would be appropriate because if not the shipping charge isn't the use of the internet if there were a charge on the internet services if you used a telephone as opposed to a broadband or some other form of communication that's not the charge we're talking about and i'm not saying it's not within the legislature's problems to define services that are taxable or to make services taxable but at this point absent any specific regulations they have chosen not to do so also i have limited question that my niece here did not protest these or the next day and said this should not be taxable mr but that this is after the me purchase this is after they made the purchase because there was no real way for them to protest when you're filling out the form on the internet you can it's house right when they made number of different circumstances the most noticeable one which is drafts and we are not claiming that this product is a necessity so we're not going to get into the that analysis of whether this is a necessity or whether even the internet to buy products is a necessity i don't think we have to go with their thought even if they've made their payments you get into the disposition of money exactly which is commonly referred to as the protest act in illinois  plaintiffs attempted to protest the tax by complying with that statute and in crane construction this court said that that was the appropriate procedure to protest a tax payment even after you have made it that as long you follow the protest fact you're considered to have done voluntary you're you're considered to have protested the tax so yes they protested the tax within the meaning of crane construction the trial court found that mr russell's protest was properly made he found that ms keane's protest was not properly made because she didn't know when wal mart was going to take the money and pay it over to the department of revenue and they came into court and even though they had the money at the time she filed  complaint after she filed her complaint they paid the money to the department of revenue and they argued that she was bound by the voluntary payment docking because they had already paid the money or rather than dispute that and she did oppose that russell filed his intervening complaint and followed the procedures and had a hearing on a t r all prior to the payment of the monies to the department of revenue which was in complete compliance with what this court setting c the proper procedure to follow to protest a path to protest a tax payment as a consumer now with all of that sad it is our position and none of the lower courts ever reach the issue  decided the case on the merits that the process that these plaintiff consumers have to go through when they're not having the ability to not write the check to the department of revenue or the ultimate tax collecting body even though they did make the payment to the  state agency the due process concerns come into play and this court has considered on numerous occasions the voluntary payment doctrine however in our research we have not come across a case where this court has considered the voluntary payment doctrine in light of the supreme court of the united states decision in macassar and mckesson talks about there having to be a meaningful in time place and manner ability to obtain concrete relief from a tax payments and if that tax payment is if that relief is post doctor of asian meaning after you pay the tax you apply for a refund or file a lawsuit against the state or whatever the process might be depending on what the plaintiff is that that means the due process attaches and you have to having meaningful opportunity we don't think that occurred here and the process would be violated if the plaintiffs aren't allowed to proceed to the merits of this case because they did everything that they could possibly do to protest this tax and obtain a ruling they filed suit for the injunction they followed crane to a key at least to a t at least mr russell did and i'm with three days before wal mart was going to make that payment the trial judge not only the my d injunction but he ruled on the merits of the case he didn't do it and an immediate appeal was taken that day the notice of appeal was filed and an emergency motion was filed asking the appellate court to stay that order so that the case could proceed they didn't do that they issued a ruling the following monday technically two days after the tax payment was going to be made then denied the emergency relief the case was remanded and the judge we didn't get that injunction we now all of a sudden having not voluntarily paid under their own admission in the trial court now we voluntarily paid and if that were an appropriate legal tool to knock someone out of the box so to speak on the voluntary payment doctrine that i don't think due process is being met and i don't think mckesson is being followed because the protest act itself is written in retrospective terms it doesn't say about your money don't pay the tax filing a lawsuit the protest act itself says pay the money to the department of revenue know then go to court  injunction keeping the department of revenue from transferring the money into the general funds so the protest act itself is written in a post deprivation language and therefore mckesson requires that the pla fs have a meaningful opportunity to oppose the tax and rather they be knocked out at the trial court rival or at the appellate court level i don't think that's a meaningful opportunity to have to get an injunction within thirty days in the trial court and then perhaps on a three day appeal if that an emergency motion in the appellate court didn't even more difficult the injunction to obtain and if that is applied in that the department wants then the merits of these cases will never be reached because there will never be a time to do it if this were to occur again with the appellate court ruling standing out there they're going to say well the taxes value because the appellate court reached the merits though you could may have a little bit more leverage because he's the one that's actually making the payment into the department so general revenue fund so i don't i do think that we should protest properly under illinois law and with the voluntary payment doctrine doesn't bar our  isn't a voluntary payment this is this involuntary admittedly involuntary payment in the trial court doesn't all of a sudden become voluntary because you didn't get your injunction and you did everything you could to protest perhaps the terminology should be it becomes moot because you didn't get your own jock's right now we disagree with that and we think that the same due process concerns apply the moon this doctrine has a number of the exceptions to read to allow the courts to consider what otherwise legally moot issues and reach the merits the department has never addressed those before this court they don't they don't address them whatsoever you know those factors likelihood of it being repeated the need for guidance i think given the diaspora of case law that we have here on these issues are certainly a lot of need for guidance and as we've indicated merchants in illinois should have a level playing field to know how to do business because we know and we've introduced evidence into the trial court at the injunction hearing that some urgency in the right i don't match charging sales tax on shipping charges on their internet transactions some are since in illinois are not charging sales tax on mail order transactions and these are relatively large merchants are not small mom and pop shops there are national chains so all to the extent that the quote were to find it the case was more you know we would implore the court to consider the merits of the case anyway as the lower courts have done in addition to the surplus or surplusage that would exist in the retailers out occupation tax language if we read any other expenses whatsoever so broadly i think that this court has formed a proper analysis for analyzing the tax here as to the third party shippers and that was done in canteen court it's not a shipping and handling case and we're not saying that it was but what the court did words was that said you've got these bags of potato chips cans of pop whatever coming off the assembly line they're going to a warehouse they're being sold to a vendor or distributor and they're being taxed as merchandise once they finally make it to the market and there's really nothing inherently different about those products that they should be taxed differently if one is put into a vending machine by the job guy job or and the other was is sold to the convenience store down in the lobby of the building the same product different tax  the exact same way on the exact same truck in the exact same building we see no reason why that analysis shouldn't be applied to a third party u p s shipping agreement fed ex or whomever d h l is website and i arranged with u b s to ship it wouldn't be taxed no one has ever said that it would be that they kind of argue with it wouldn't be but now all of a sudden because ramadan is acting as a they as an agent so to speak to enter into a separate agreements with u p s for shipping that all of a sudden that shipping becomes taxable it's the same shipment it's on the same truck it's going to the same place and there's no reason in logic that the legislature intended to tax u p s is shipping in one instance and not in the they look at this last sentence of that section d there's five five sections they all deal with situations where there's a separate agreement they all say you don't have to have a separate contract you don't have to have a separate form you can listed all on one invoice those on determine itself but as long as there's a separate agreement for shipping the shipping isn't taxable now that language came to being after a couple of cases you know i see that my time was up if i could finish the thought and then sit down shortly so i want those cases came to be after the department put in language expressly saying that mail order transactions and shipping on the same form were not taxable and all they did was take out the words mail order and didn't change that provision whatsoever and we don't think the result should be any different and we ask that your honour's reverse thank you voluntary payment doctrine bars the plaintiff's claims in this case this court and rocks were made clear that where a tax is voluntarily paid it can only be recovered were authorized by statute of this court went on to specify that statutory compliance is a prerequisite to a taxpayer's right to defend against a particular tax levy and the burden of showing compliance rests on the taxpayer that case that's also consistent with this course decisions and car ponty a quoted throughout the defendant's brief use nine hundred fifty three decision which also quoted and cited the wording company versus trend case from this court in hundred thirty all for the proposition that to recover a paid tax the taxpayer must comply with the statutory mechanism provided first up in this case i determining whether the payment was voluntary and it was under this court's and then this course decisions in the pro course decisions in illinois a payment a tax payment is involuntary into situation one of two situations run where there is to russ and to weather the weather is a lack of knowledge in this specific context address means that the item purchased concerned and assessing the of a life where there is no other option to purchase the item clearly the many trampoline and the learning and electronic learning device in this case were not necessities of what was that the case reasonable option to purchase the items elsewhere here there is a reasonable option to push themselves where they submit that they could go to a brick and mortar wal mart store and get the items were marked out come was not the only place to buy these items was no direct us furthermore there is no claim there is no reasonable claim for lack of knowledge under this court's friend versus avis rent a car case where the tax is itemized so forth and the tax payers provided sufficient information to discern rather is taxed and how much the tax is the taxpayer has adequate knowledge to form the basis for protest it was certainly the case looking at the invoices in this case so the tax was voluntarily paid to recover the plaintiff must the plaintiffs must require with the procedure authorized by statute that procedure in illinois is the protest and asked me to put a bow to the plaintiffs through the cream construction procedure under omar to enjoin them from paying the taxes to the state other then under protest to the state as part of that and this is where the protest from that act procedures come in they must obtain an injunction resulted in the taxes being paid into the state's regular revenue fine at that point the statute heard tori wright is foreclosed and the voluntary payment doctrine bars any relief even if this court determines obtaining a study or an injunction that is truly alone they could obtain a stay or an injunction seek supervisory or something along those lines from this order on emergency basis but it's no different than any other or many other types of cases where  requires a meaningful opportunity and a remedy to obtain the tax that was paid that is challenged the protest from the act provides that this is not a post deprivation or maybe it's a treat up or vacation or me in the sense that it's a remedy that the taxpayer kind of bail itself off the floor of the tax is paid into the state's revenue fund as opposed to filing administrative action for a tax refund after those taxes have been paid it is a pretty under this the the able to obtain the relief but simply because they were not able to obtain relief doesn't mean that there was not a mechanism there that they could avail themselves  and again this has been clear that the failure to comply with the statutory mechanism for recovering a voluntarily paid tax deferred to comply with that name is a result in the lack of standing or the failure of the ability to challenge that it's about time for me to turn and turn it over to mr shelfer discussion of them the merits of just if there's no other voluntary payment question dr questions i would just introduce the merits argument mostly very simply that this is an easy case section one of the retailers occupation tax act defines the sell of the taxable selling price at the amount of consideration received for a sale without any deduction or any expense whatsoever gapers decision cited throughout the parties breeze please the court counsel my name is arthur sheller i represent the wal mart defendant sample ease of this case this case as mr liker said is very simple it turns on the fact that these internet purchases here could not be completed it could consummated without a delivery charge that there was one contract in this case it included both the price of the item and the delivery charge that's the selling price and that's what wrote a texas now what pla you in their briefs and what they started arguing earlier is that they argue that they're exempt under a narrow exemption found in the regulations of the department and that exemption is that delivery charges  not taxable if they're separately contract for the problem with that argument though is it's belied by the allegations the factual allegations of plaintiff's complaints by the us of a ledge in their complaint that the first thing they did the walmart dot com website was click on an item and put it in their electronic shopping cart if ordered by plaintiff's theory that there's two separate contracts at the moment they put that item into their shopping cards this court would have to conclude there was an enforceable contract for the purchase of that item because the next step is a choice of delivery on the website so if there's two separate contracts we have to conclude that by putting it into your cards there isn't an forcible contract and of course there is no  forceable contract because plaintiffs are free to take the item out of their card and put it back on to the shelf now the allegations of their complaints show that there was a number of inseparable links in this transaction plaintiffs went to web site selected the item select delivery they put their credit card information in they go to another web page that is a confirm and submit web page and at that web page have a chance to review their order make any changes that they'd like to make and if they decide to make a purchase they click a button at that point submit your order and that's the purchase and then their consideration is paid through their credit card yes this team is going to get contracts and payments was a prerequisite payment of the delivery charges was a prerequisite to transfer of ownership of title to the goods the only true opportunity purchaser yeah button other mouse and when they click that final button they make their purchase they submit their consideration and they take ownership title to the goods store is that mean that the inseparable link is that yes yes your honor  the case or the separable link case law is the proper test and country to plaintiffs arguments that is firmly embedded in illinois concept in fact they say the mayhem case from one nine hundred forty one for the proposition that the statute rather should be strictly construed against the government and that case actually talks about an inseparable part of some things that separable part that this court said if deliveries an inseparable part of the cell it's a cost of doing business and it's it's part of rhoda now plaintiffs and i want to cover a few more points before i  time but they argue this canteen corp case in their briefs they rely pretty heavily on their case that case actually undermines them because it stands for the well subtle proposition that their presence regulations can neither expand nor limit the corp this court found that one of the department's regulations was inconsistent with the statute and in this case we have a very clear statute and the regulations we believe supports our interpretation of the statute when they're construed as a whole and not in the piecemeal fashion that they suggest but they're asking in their argument for you to read the regulations broadly and to vary the language of the statu and we're just simply saying read the regulations consistent with the statute as we do this shellers mr robinson correct that if if his clients had the option to contract separately directly with u know x on the tree that's right if they had that option and actually it's a wonderful hypothetical your honor because that's my next question if wal mart arrange the architecture's structure of this purchase you know you here's the purchase price here's the tax on it was completely the way wal mart said that that's correct why does it make a difference one way or another wal mart you know again benefit it well you know it's it's my speculation only speculating i think the benefit to wal mart is the course interested in keeping our costs down and i think by setting up an option if it picked up at a brick and mortar store maybe until more you know rents more space more personnel but that's you know my my speculation then i think the hypothetical your honor points to the fact really underscores that they didn't separately contract here when they say in their brief if only wal mart you had set it up differently and we could have separately contracted it tells you that they did  also i'd like to address things in reverse order perhaps this battle boils down to inseparable link vs selling price that might be how this court will do it will determine the issue i'd like to discuss that all of the inseparable link cases that anyone has cited have been cases where the merchant him self or itself was providing the service that was could considered to be an  other way council site throws carpets but yet they're asking this court to basically disregard what the terrorist carpets court sent because they talked about if there were a separate agreements for the installation of the company it wouldn't be taxed brought in most of those cases gapers etc it was this is really all one transaction gapers you brought in home catering service with serial services you had some mental livered in their truck here we have a third party that's a substantial distinction but let's take a look at the word selling price because they say this is one transaction and by the way as an aside why is it any less one transaction if you elect internet shipping and you had the option to pick it up at the store you fill out the exact same form and instead of saying i'm going to pick up the product at the store i'm going to get it shipped to me yet they have all argued in their br court said as well if you have that option to pick it up in the store this contract between romney and u p s or the between the plaintiffs and u p s suddenly becomes a separate contract how is it any less of a separate contract in that and that's their position if you have the option of picking it up at the store so simple option not that you do it but you have the the exact same truck it's the exact same bells and whistles but simply because you had the option of picking it up at the store all of those things all of a sudden become a separate agreement but let's look at selling price because if you buy something you pay the selling price right and if you take it back you get the selling price back don't you well not in this case and that's an important distinction you don't get your shipping agreement price back if you take the product back if you send it back to wal mart your refund or really the price of the product because the separate agreement that you've entered into with them for shipping for a separately ascertainable price doesn't  it's not just if you take it back to the internet if you take your product back to the local wal mart store and say you know i got these drapes and they look really nice on line but they just don't go with my sofa  or the blue is off i want to return them or you've had this product shipped and you paid to have it shipped what does romar give you back when you take it back to the store the selling price the whole bank knol you don't get your shipping price for the cost of the shipping because in one case the merchant is making it a part of the cost of doing business to say we'll send you this shipping included and if you send it back as a cost of doing business they're going to have to pay for that but if they've got two separate agreements and you bring the product back and maybe maybe that's why wal mart does it they have to they don't have to pay the shipping back because you didn't pay them for the shipping they just pass the costs through to you p s now turning to the voluntary payment doctrine perhaps this is a battle about the roses post operation was citing an early one nine hundred scase that if you are relegated to paying with tax and then seeking post payment relief perhaps the correspondent quick enough to realize this but that is a payment under duress if you have to pay the money and then go into a refund process and we're not saying we don't have a refund process but that we from process shouldn't be cut off  trial court stage that is not a meaningful opportunity to relief it's a roadblock and not one of the voluntary payment doctrine cases that i have come across this involved wasn't a voluntary payment now they went on in that case to say perhaps it's moot but that's something they don't want to talk about because they don't want the court to reach the merits of this case we think that allowing someone manner for a consumer to get their portion of the used taxpayer out here we had a willing participant romar for whatever business reasons it wanted to so we were going to pay this money therefore we're going to cut off cut you off at the knees and not give you the opportunity to pursue your relief we should be giving him room for opportunity this court should give us that money for the opportunity to consider this case on the merits and what it does look at the fact that there was a third party agreement not one of the other cases dealt with third party agreements look at the definition of selling price we don't get our money back if we send the product back it's not part of the signing price there are alleged to not complaint so there is a separate agreement here the fact that there was one invoice doesn't matter the department said sorrow in section four point one three zero point four one five and the terrace carpets court said so as well looking at the language of the retailers occupation tax act the language any other expense whatsoever if read as broadly as the fandom suggests that all of the other criteria i listed above that that were put in there for some reason by the legislature never had to be there in the first place recent just that that's contrary to statutory construction and that's the reason that language isn't there to cover other types of expenses of business internally not extr through third party agreements and for those reasons we are securing this reverse the rulings in the trial and tell the court thank you