# SUPREME COURT OF MISSOURI en banc

KRISPY KREME DOUGHNUT ) CORPORATION, ) ) Appellant , ) ) v. ) No. SC 95181 ) DIRECTOR OF REVENUE, ) ) Respondent. )

PETITION FOR REVIEW OF A DECISION OF THE ADMINISTRATIVE HEARING COMMISSION The Honorable Karen A. Winn, Commissioner Opinion issued May 3, 2016 Krispy Kreme Doughnut Corporation petitions for review of the Administrative Hearing Commission's decision ruling that Krispy Kreme is not entitled to a refund of sales tax paid on food items sold from its stores between April 2003 and December 2005. The Commission ruled Krispy Kreme failed to prove , by a preponderance of the evidence , that not more than 80% of its food products were sold for immediate consumption on or off the premises of the establishment ; therefore , the lower tax rate author ized by § 144.014 1 did not apply to Krispy Kreme's food sales. Krispy Kreme argues the Commission's decision is contrary to the o nly evidence in the record and conflicts with the reasonable interpretation of § 144.014 .2 . Because Krispy Kreme's

1 Statutory citations are to RSMo 2000, unless otherwise indicated.petition involves the construction of a revenue law of this state, this Court has jurisdiction pursuant to article V, section 3 of the Misso uri Constitution. The Commission's decision is affirmed. Factual and Procedural History This Court previously summarized much of the relevant background in Krispy Kreme Doughnut Corp. v. Dir. of Revenue ( Krispy Kreme I ), 358 S.W.3d 48 (Mo. banc 2011) , a decision that remanded the case to the Co mmission

. After remand and subsequent disposition by the Commission, the case has returned to this Court. The relevant pre

- remand background is provided, again, for full context. Krispy Kreme owns and operates sto res in Missouri that are engaged primarily in the production and retail sale of donuts . The stores offer "dine

- in" accommodations on their premises and alert potential customers when freshly

- made donuts are available with a "HOT DOUGHNUTS NOW" sign . In a ddition to donuts , the stores sell related food products, such as bagged coffee beans and ground coffee, coffee and related coffee drinks, hot chocolate, milk, bottled water, bottled juices, and other soft drinks. Between April 2003 and December 2005 (the relevant tax periods), Krispy Kreme collected and remitted sales tax from its retail sales based on the 4% rate imposed by § 144.020. However, in 2006, Krispy Kreme took notice of § 144.014, which imposes only a 1%
sales tax ra te "on all retail sales of food." Subsection 2 of § 144.014 adds further qualifications: For the purposes of this section, the term "food" shall include only those products and types of food for which food stamps may be redeemed pursuant to the provisions of the Federal Food Stamp Program as contained3 in 7 U.S.C. Section 2012, as that section now reads or as it may be amended hereafter, and shall include food dispensed by or through vending machines. For the purpose of this section, except for vending machine sales, t he term "food" shall not include food or drink sold by any establishment where the gross receipts derived from the sale o f food prepared by such establishment for immediate consumption on or off the premises of the establishment constitutes more than eighty percent of t he total gross receipts of that establishment, regardless of whether such prepared food is consumed on the premises of that establishment, including, but no t limited to, sales of food by any restaurant, fast food restaurant, delic atessen, eating house, or cafe. Arguing the 1% tax rate under § 144.014 was applicable , rather than the 4% tax rate under § 144.020 , Krispy Kreme sought a refund for sales tax it had r emitted on retail sales of do nuts, non

- hot beverages, juices, milk, coffee beans, and ground coffee during the relevant tax periods . It did not seek a refund for sales tax remitted on retail sales of hot drinks. Krispy Kreme's original refund claim totaled $324,237.33 . The director of revenue deni ed this claim. After conceding it was not entit led to a refund on dine

- in sales, Krispy Kreme reduced its claim to $277,992.20 and sought review of the director's decision by the Admi nistrative Hearing Commission. Before the Commission, Krispy Kreme argued its products, other than hot drinks, qualifie d as "food" under § 144.014.2 and that its retail sales were not disqualified from the lower tax rate by § 144.014 .2 's "80/20 test" because not more than 8 0% of its gross receipts were derived from " food prepa red . . . for immediate consumption. " Because most sales were attributable to donuts, whether Krispy Kreme derived more than 80% of its gross receipts from food prepared for immediate consumption depended on the characterization of its donuts. Krispy Kreme argued that, while its donuts were often

con sumed immediately, not all of its donuts should count toward the 80% threshold4 because not all were prepared for immediate consumption. It asserted that any or all of the following should not count as food prepared for immediate consumption: (1) donuts th at were not purchased within an hour of being prepared and ready to eat; (2) donuts sold by the dozen; and (3) donuts that customers did not eat at the store or in transit. If any of these categories of donuts did not count toward the 80% threshold, Krisp y Kreme was not disqualified from § 144.014's lower tax rate by the 80/20 test. The director argued that all of Krispy Kreme's donuts should count as food prepared for immediate consumption because they were all capable of being eaten without further prep aration by the customers. Both sides filed cross

- motions for summary decision. The Commission sustained the director's motion for summary decision, overruled Krispy Kreme's motion, and denied Krispy Kreme's refund . The Commission ruled that although Kr ispy Kreme's products qualified as "food" under the Federal Food Stamp Program's definition, the director's interpretation of § 144.014.2 yielded a more reasonable result when considering the 80/20

test ; th erefore , Krispy Kreme failed to carry its burden o f showing that not more than 80% of its gross receipts were derived from the sale of food prepared for immediate consumption

. Krispy Kreme then petitioned for review in this Court.
In Krispy Kreme I , this Court rejected both the director's and Krispy Kreme's interpretations and , instead , provide d the following interpretation of § 144.014.2: The proper interpretation of the 80/20 test becomes apparent when all of the words "food prepared by such establishment for immediat e consumption on or off the premises of the establishment" are given their full effect. Of particular importance are the words "on or off the premises," which modify "immediate consumption," clarifying that "immediate consumption" is not5 an abstract conce pt (food that could be consumed immediately) but a concrete event (actual consumption at the time of purchase or within the time necessary to travel to another location "off the premises"). Accordingly, "food prepared ... for immediate consumption on or off the premises" means all food that is eaten at the place of preparation and purchase, or while traveling to, or immediately upon arrival at another location without any further preparation." 358 S.W.3d at 53 (emphasis added). This Court held, therefore , neither party was entitled "to a favorable decision based on a correct understanding of the substantive law," reversed the Commission's decision sustain ing the director's motion for summary decision, and remanded the case

. Id. at 53

. Following remand , Kr ispy Kreme attempted to produce evidence of its customers' actual consumption habits during the relevant tax period . It conducted an online survey between September and November 2012 that asked its customers where th ey eat the donuts they purchase from a Krispy Kreme store and when they eat such donuts after arriv ing at the place of consumption

. Based on the results, Krispy Kreme concluded that
if "immediate consumption" meant consumed within 60 minutes , then enough of its donuts were not immediately cons umed for it to be disqualified by the 80/20 test. That is, those donuts that were, in actuality, not consumed within an hour of arriving at the place of consumption were not donuts prepared for immediate consumption and , th erefore , did not count toward the 80% threshold. Understanding that the results of its survey were based on customer s' responses in
2012 , rather than during the relevant tax periods, Krispy Kreme offered evidence attempting to show the 2012 survey results were eq ually applicable to the relevant tax periods. Both Alison Holder, the vice president of brand d evelopment for Krispy Kreme,6 and Mike Parker , manager of the Missouri stores , testified that customer behavior had not

mater ially changed from 2003 to 2012 ; th e refore , the survey results also reflected customer behavior during the relevant tax periods. Krispy Kreme also offered several other past surveys tending to show that customers' motivations for purchasing Krispy Kreme donuts had remained largely unchanged over the years. The director did not offer any evidence, but objected to the admission of the 2012 survey. The Commission again denied Krispy Kreme 's refund

. The Commission ruled the 2012 survey was admissible, but found the survey did "not establish, by a preponderance of the evidence, that it reflects [Krispy Kreme customers'] consumption habits during the tax periods." The Commission explained that Krispy Kreme's witnesses and other past surveys failed to address the key issue

— " when customers eat th eir doughnuts." The Commission further noted a conundrum it perceived created by this Court's interpretation
in Krispy Kreme I : We recognize that our conclusion raises the question: given the Supreme Court's framing of the issue in this case, how can a re tailer prove that not more than 80% of its total gross receipts derives from food prepar ed by the establishment that is eaten at the place of preparation and purchase, or while traveling to, or immediately upon arrival at, another location without any furt her preparation? Such a question can never be answered with absolute certainty and precision, so is Krispy Kreme's 2012 survey and testimony linking consumer habits from the survey periods to the tax periods sufficient? Or is it possible that adequate pr oof for the tax periods at issue simply cannot be found at this point, but a similar survey, mad e during future tax periods, will suffice for future contemporaneous refund claims? Krispy Kreme petitioned this Court for review.7 Standard of Review This Court will affirm the Commission's decision when it is "authorized by law and supported by competent and substantial evidence upon the record as a whole unless clearly contrary to the reasonable expectations of the General Assembly." 801 Skinker Blvd . Corp. v. Dir. of Revenue , 395 S.W.3d 1, 3

– 4 (Mo. banc 2013) (internal quotations omitted); see also § 621.193. This Court defers to the Commission's findings of fact, but reviews the Commission's determination of issues of law de novo

. Michael Jaudes Fitness Edge, Inc. v. Dir. of Revenue , 248 S.W.3d 606, 608 (Mo. banc 2008). Analysis Krispy Kreme first argues the Commission erred because its decision was contrary to th e o nly evidence in the record

. Krispy Kreme argues it presented substantial evidenc e

o f its customers' actual consumption habits that establish ed it was not disqualified from § 144.014's lower tax rate by the 80/20 test . Krispy Kreme concedes that it had the burden of proof and that the usual standard of review

— upholding the Commission' s decision if "supported by competent and substantial evidence"

— is not applicable when reviewing a decision in favor of the party without the burden of proof

. See, e.g., Bakelite Co. v. Miller , 372 S.W.2d 867, 871

– 72 (Mo. 1963). That Krispy Kreme had the burden of proof means it had both the burden of production and burden of persuasion. White v. Dir. of Revenue , 321 S.W.3d 298, 304 (Mo. banc 2010). The burden of persuasion means Krispy Kreme had "to convince the fact

- finder to view the facts in a way t hat favors" Krispy Kreme. Id. at 305. Krispy Kreme did not carry its burden simply by the fact that it offered evidence to support its position and the director offered no evidence. The8 Commission "may disregard evidence which in its judgment is not cre dible, even though there is no countervailing evidence to dispute or contradict it." State ex rel. Rice v. Pub.
Serv. Comm'n , 220 S.W.2d 61, 65 (Mo. banc 1949). "The rule is established in this State that the triers of fact under their duty to weigh the evidence may disbelieve evidence although it is uncontradicted and unimpeached." Id. The director need ed only to contest Krispy Kreme's evidence, which may be done through cross

- examination or pointing out "internal inconsistencies" or credibility issue s . White , 321 S.W.3d at 308. Because the director contested Krispy Kreme's evidence, this Court defers to the Commission's determinations about persuasiveness of the evidence. Id. Here, the Commission gave little weight to Krispy Kreme's evid ence and concluded that Krispy Kreme did not carry its burden of persuasion. Krispy Kreme suggests it offered so much persuasive evidence that this Court must apply a new, and more appropriate, standard of review for this context and ask whether the Commissio n's decision is "against the weight of the evidence." However, this ignores that "against the weight of the evidence" is already inherently part of this Court's standard of review for administrative cases. See Hampton v. Big Boy Steel Erection , 121 S.W.3 d 220, 223 (Mo. banc 2003) ("Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence."). And this Court will only reverse on an against

the

- weight

- of

- the

- evidence basis as a check on "potential abuse of power in weighing the evidence . . . in rare cases, when it has a firm belief that th e decree or judgment is9 wrong . " Ivie v. Smith , 439 S.W.3d 189, 206 (Mo. banc 2014). As discussed below, this Court has no such belief that the Commission's decision is wrong. Krispy Kreme secondly argues the Commission erred because its decision is

con trary to the reasonable expectations of the General Assembly and conflicts with the
reasonabl e interpretation of § 144.014 .2

. Krispy Kreme asserts that this Court should reconsider its Krispy Kreme I interpretation of the words "food prepared

. . . for
im mediate consumption" and that , by its plain terms, § 144.014 .2 is referring only to food that is prepared specifically for consumption at once, without delay, such as a hamburger or steak. Krispy Kreme suggests that, under this proposed interpretation, d o nuts are not food prepared for immediate consumption because , unlike a restaurant

- prepared hamburger or steak, donuts may be consumed after some delay. Echoing the Commission, Krispy Kreme also notes the difficulty of proof seemingly created by Krispy Kreme I 's focus on actual consumption

. C oncerns over how Krispy Kreme would meet its burden of proof required to obtain the refund are understandable. In an effort to meet its burden of proof in accord, Krispy Kreme attempted to demonstrate when and wh ere its customers ate the donuts they purchased between April 2003 and December 2005. Indeed, by interpreting the language of § 144.014 .2 to merely focus on actual consumption, this Court encourage d an effort to determine when and where an establishment's individual customers actually consume food that is taken off the establishment's premises . But , borrowing from the Illinois Supreme Court, this Court does not believe the General Assembly " intended that retailers interrogate their customers as to when th ey plan on eating the food. Indeed, any10 sort of policing would be impractical and absurd." Canteen Corp. v. Dep't of Revenue , 525 N.E.2d 73, 78 (Ill. 1988). Rather, § 144.014 .2 's terms should be "viewed in the light of reality" and not "be stripped of c ommon sense" or construed "to establish arbitrary loopholes." Id. Accordingly, further analysis of the legislative history and legislative
intent from this Court appears necessary . Subsection 1 of § 144.014 provides that "the tax levied and imposed . . . on all retail sales of food shall be at the rate of one percent." Subsection 2 further defines what is meant by "food." As originally enacted , subsection 2 of § 144.014 read only: For the purposes of this section, the term "food" shall include only those products and types of food for which food stamps may be redeemed pursuant to the provisions of the Federal Food Stamp Program as contained in 7 U.S.C. Section 2012, as that section now reads or as it may be amended hereafter, and shall include food dispensed by or through vending machines. RSMo Supp. 1997. In relevant part, the definition of "food" for purposes of the Federal Food Stamp Program is "any food or food product for home consumption except

. . . hot foods or hot food products ready for immediate consumption." 7 U.S.C. § 2012(k)(1). Accordingly , "food" under § 144.014 meant that which was for home consum ption, unless it was hot and r eady for immediate consumption. At fi rst glance, this definition would appear to , for tax purposes, distinguish food purchased from grocery stores and establishments similar to grocery stores (i.e., food for home consumption ) from food purchased from restaurants and establishments similar to restaurants 2 (i.e., food that was

2 Hereinafter, the term "grocery stores" will be used broadly to refer to both grocery stores and establishments similar to grocery stores, such as conven ience stores . Likewise, the term11 either not for home consumption or was hot and ready for immediate consumption )

. After all, the higher tax rate in § 144.020 explicitly applies to "meals and drinks furnished at any . . . restaurant, eating house . . . or other place in which . . . meals or drinks are regularly served to the public." Consequently , food purchased from grocery stores would , for the most part, be taxed at the 1% rate in § 144.014, while food purchased from restaurants would b e taxed at the h igher rate in § 144.020. Instead of accomplishing this intended distinction , th e definition of "food" created a tax anomaly , allowing many foods sold by restaurants to be taxable at the 1% rate largely intended for foods sold by grocery stores . This is because the tax rate applicable to food purchased from a restaurant could very much depend on what food was ordered and how it was ordered. If a customer purchased food from a restaurant to go or for home delivery, the food was presumably for h ome consumption. W hether or not such food was "food" for purposes of § 144.014 and its lower tax rate turned solely on whether the food was hot . If hot, the food was not "food" for purposes of § 144.014 and taxed at the higher rate ; if not hot, the food was "food" for purposes of § 144.014 and taxable at the lower rate

. For example, a cold deli sandwich ordered to

- go or for home delive ry would, under the dictates of § 144.014, be tax able at a lower rate than a hot deli sandwich ordered to go or for home delivery from the same establishment

. Moreover, if a customer
ordered a non

- hot food item, whether or not it was "food" for purposes of § 144.014 turned solely on where the food was to be consumed

. For example , if a cold deli

" r estaurants" will be used broadly to refer to both restaurants and establishments similar to restaurants , such as delicatessens and cafes

.12 sandwich was ordered to go o r for home delivery, the sandwich would be "food" for purposes of § 144.014 and taxable at the lower rate ; if the same cold deli sandwich was ordered for "dine

- in" from the same establishment, the sandwich would not be "food" for purposes of § 144.014 beca use it woul d not be for home consumption. In short,
unintended inconsistencies could abound due to the limited definition of "food " incorporated by § 144.014.2. Accordingly, just two years after adopting § 144.014 , the General Assembly added the following to subsection 2 : For the purpose of this section, except for vending machine sales, the term "food" shall not include food or drink sold by any establishment where the gross receipts derived from the sale of food prepared by such establishment for immedia te consumption on or off the premises of the establishment constitutes more than eighty percent of the total gross receipts of that establishment, regardless of whether such prepared food is consumed on the premises of that establishment, including, but no t limited to, sales of food by any restaurant, fast food restaurant, delicatessen, eating house, or cafe. RSMo Supp. 1999. With this addition, food sold by grocery stores i s much more effectively distinguished from food sold by restaurants for tax purposes . Because of the 80/20 test, a ll food sales from restaurants are now disqualified from § 144.014's lower tax

rate

— not just food that i s ordered for dine

- in or hot and ready for immediate consumption. That this was the intended effect is confirmed , most obviously , by the addition's last line emphasizing that the 80/20 test i s meant to capture " sales of food by any restaurant, fast food restaurant, delicatessen, eating house, or cafe." Of course, this attempted distinction between grocery stores a nd restaurants can only be accomplished if the establishments intended to fail the 80/20 test d o indeed13 derive more than 80% of gross receipts from the sale of food prepa red for immediate consumption. Key language fo und in the addition to subsection 2 ensure s that this 80% threshold w ill be met by the intended targets

. First, the addition refer s to "food prepared by such establishment for immediate consumption ," without reference to whether such
food i s hot , as the Federal Food Stamp Program does

. § 1 44.014. 2

. This dispel s any notion that food previously qualifying for the lower tax rate as non - hot food i s not intended to count toward the 80% threshold. It d oes not matter whether the food that i s prepared for immediate consumption i s hot, cold, or ro om temperature

— it all count s toward the 80% threshold. Second, the addition refer s to "food prepared by such establishment for immediate consumption on or off the premises of the establishment ." § 144.014.2 (emphasis added). This "on or off the premises " language dispel s any notion that food previously qualifying for the lower tax rate as food fo r home consumption i s not intended to count toward the 80% threshold. It d oes not matter whether the food that is prepared for immediate consumption i s for a dine

- in order, a to

- go order, or a delivery order

— it all count s toward the 80% threshold.

"This Court's primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue." Parktown Imp orts , Inc. v. Audi of Am., Inc. , 278 S.W.3d 670, 672 (Mo. banc 2009). As d emonstrated above , because the addition to subsection 2 does not limit itself to "hot" food and because it expressly includes the words "on or off the premises," the general purp ose of the addition to subsection 2 is readily apparent

— ensuring that food sold by restaurants i s no longer

tax able at § 144.014's lower rate. With th is purpose in mind , there is no need to place14 undue emphasis on certain terms of § 144.014.2. Because th e 80/20 test was intended to capture restaurants by counting food prepared for immediate consumption toward the 80% threshold , the pertinent question in determining whether an establishment's food should count toward the 80% threshold is whether the food i s akin to the food primarily sold by "restaurant [s] , fast food restaurant [s] , delicatessen [s] , eating house [s] , [and] cafe [s]

. " See § 144.014.2. In contrast to grocery stores, restaurants primaril y sell food s that they have prepared and that are often, though not always, consumed immediately

. Accordingly, in keeping with the plain language of § 144.014.2 and the intent of the General Assembly, if food is prepared by an establishment and regularly consumed by the establishment's customers immediately

— th at is, "at the place of preparation and purchase, or while traveling to, or immediately upon arrival at another location without any further preparation"

— it is "food prepared . . . for immediate consumption" for purposes of § 144.014.2. 3 See Krispy Kreme I , 358 S.W.3d at 53. Notably, i n Krispy Kreme I , this Court rejected the argument that "food prepared for . . . immediate consumption" meant food that was merely capable of being immediately consumed. Id. at 52. A food that is capable of immediate consumption is not necessarily a food that is indeed regularly consumed immediately. A loaf of bread, for example, is certainly food capable of being immediately consumed, but is not one

3 Krispy Kreme's argument that only foods prepared specifically for consumption at once, without delay, are intended to count toward the 80% threshold is belied by the fact that § 144.014.2 does not refer only to "hot food" that is ready for immediate consumption, as the Federal Food Stamp Program does. Rather, it refers broadly to all food prepared for immediate consum ption, without reference to temperature that could affect when the food should be consumed. See § 144.014.2.15 regularly consumed imme diately. Restaurants typically sell foods that are not just capable of immediate consumption, but are, in actuality, regularly consumed immediately

— such as sandwiches, hamburgers, and salads. Merely focusing on capability of immediate consumption is an i ncomplete analysis as it does not fully reach the essence of what restaurants primarily sell. If a food is not one that is regularly consumed immediately, it is not a food typi cally sold by restaurants and is not intended to count toward the 80% threshold

. In this limited sense, customers' actual consumption habits matter. See id. at 53. However, the classification of a food does not change based on an individual's actual consumption of that food. If a food qualifies as a "food prepared . . . for imme diate consumption" based on the above criteria, all sales of that food count toward the 80% threshold regardless of whether a particular customer actually consumes the food immediately. Krispy Kreme I 's emphasis on actual consumption should not be read to authorize otherwise. Furthermore, whether a food meets the above criteria often w ould be readily apparent by the surrounding circumstances indicating the general nature of the food , with actual or survey evidence of customer consumption optional

. Krispy Kreme's case is illustrative of this point. Here, Krispy Kreme sells donuts that it has fully prepared for consumption

. Krispy Kreme's donuts may be eaten without delay and without further preparation on the part of the customers and are , by their very nature, portioned into individual servings , even when sold by the dozen

. Krispy Kreme's donuts are typically a stand

- alone snack or meal, rather than food that is purchased to be used in conjunction with other foods to create an entirely different meal

. Krispy Kreme16 offers dine

- in seating for the consumption of donuts and also sells drinks, such as coffee and milk, that lose their appeal if not consumed immediately and are complementary of donut consumption. Furthermore, Krispy Kreme alerts potential cus tomers when freshly

made donuts are available with a "HOT DOUGHNUTS NOW" sign, the inference being that many customers prefer to consume do nuts that have just been made. Given the se circumstances , Krispy Kreme does not dispute

— and its own statistical evid ence confirms

— that it prepares its donuts and that th e donuts are regularly consumed immediately by its customers. Therefore , Krispy Kreme's donuts are akin to food sold by

restaurants and count toward the 80% threshold as "food prepared . . . for immedia te consumption." This is true even for the donuts that are not actually consumed immediately. Statistical evidence about individual consumption showing that some donuts are not actually consumed immediately does not change the general nature of Krispy Kreme's donuts. Simply put, a donut is a donut. Krispy Kreme does not prepare certain donuts suitable only for immediate consumption and separate, different donuts that are also suitable f or non - immediate consumption. All donuts are prepared the same in this respect , and all donuts, in general, are regularly consumed immediately by its customers

. A donut is no less a food prepared for imm ediate consumption simply because a customer
choose s to eat it two hours after purchase rather than right away. As seen in this case, t o hold otherwise encourages the hopeless endeavor of trying to prove individual customers' actual consumption habits after they leave an establishment's premises . More importantly though, to hold otherwise provides a17 potential arbitrary loophole for the type of establishments that the General Assembly was trying to preclude from the benefits of a lower tax rate provided by § 144.014 . In short, Krispy Kreme 's stores ope rate more like restaurant s than grocery store s . They are best described as places in which "meals or drinks are regularly served to the public," and its sales are intended to be taxed at the higher rate under § 144.020. As the type of establishment inten ded to be disqualified from the lower rate by the 80/20 test, Krispy
Kreme has failed to meet the burden of proof to be entitled to a sales tax refund pursuant

to interpretation of § 144.014.2

. Giving effect to the General Assembly's intent and the plain language of § 144.014.2 , all of Krispy Kreme's donuts are "food prepared . . . for immediate consumption." The Commission's decision denyin g Krispy Kreme a refund under § 144.014 is consistent with the reasonable expectations of the General As sembly and authorized by law. After review of the record, this Court concludes Krispy Kreme failed to prove that sales of food prepared for immediate consumption did not constitute more than 80% of its total gross receipts and failed to show it was entitl e d to the lower tax rate under § 144.014. The Commission's decision is affirmed.

Zel M. Fischer, Judge All concur.