THE STATE OF SOUTH CAROLINA

In the Supreme Court

Books

- A

- Million, Inc., Petitioner,

v.

South Carolina Department of Revenue, Respondent.

Appellate Case No. 2020

- 001102

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from the Administrative Law Court

John D. McLeod, Administrative Law Judge

Opinion No. 28110

Heard November 8, 2021

– Filed September 14, 2022

AFFIRM ED

Burnet Rhett Maybank, III and James Peter Rourke, both

of Nexsen Pruet, LLC

, of Columbia

, for Petitioner

.

Sean Gordon Ryan and Adam J. Neil, both of Columbia

, for Respondent.

Anthony E. Rebollo, Benjamin Palmer Carlton, Carmen

Vaughn Ganjehsani, of Richardson Plowden & Robinson,

P.A., of Columbia, for Amici Curiae Warehouse Home

Furnishings Distributors, Inc.JUSTICE HEARN: For $25 per year, c ustomers of Books

- A

- Million can become

members in the "Millionaire ' s Club " to receive retail discounts

. T hese memberships

became the subject of a tax audit by the South Carolina Department of Revenue

("Department") and, a s a result, Books

- A

- Million ("T axpayer ") was assessed nearly

a quarter

- of

- a

- million dollars in back taxes. T he Administrative Law Court ("ALC")

agreed with the Department's assessment, and t he court of appeals affirmed on the

grounds that the "proceeding o r accruing" language of our sales tax act includes the

returns from Millionaire's Club sales

. We granted certiorari and affirm

.

FACTUAL/PROCEDURAL BACKGROUND

Books

- A

- Million is a retail bookstore operating thirteen locations throughout

South Carolina. I n 2015, the South Carolina Department of Revenue audited three

years of Books

- A

- Million's financial records and discovered that no sales tax was

being charged on Millionaire's Club memberships. The D epartment thereafter issued

a Notice of Proposed Assessment for $242,076.97 1 in unpaid sales tax.

Taxpayer was granted a contested hearing before the ALC, which upheld the

assessment because, under South Carolina law

, the sales of intangible memberships

can be taxable if their value originates from the sale of taxable goods. Taxpayer then

appealed to the court of appeals which affirmed. See Books

- A

- Million

, Inc. v. S

. C

. D ep't of Revenue

, 430 S.C. 388, 844 S.E.2d 399 (Ct. App. 2020). Both courts held

that t he pertinent language of "value proceeding or accruing" from the definition of

"gross proceeds of sales" was inclusive of T axpayer's Millionaire's Club

membership fees because th e language included value related to sales, not merely

the value of the sales themselves. See id. ; S.C

. Code Ann. § 12

- 36

- 90 (2014 & Supp.

2021 ).

ISSUE PRESENTED

Did the court of appeals err in concluding that Books

- A

- Million's

"Millionaire's Club" membership fees were subject to sales tax under South Carolina

law?

1 This figure includes $15,703.13 in interest and $63.14 in penalties.LAW/ANALYSIS

Taxpayer argues that its sales of Millionaire's Club memberships are not

taxable under South Carolina's sales tax because the language of the statute excludes

it

. The D epartment contends that our tax code contemplates value not just from sales

of tangible goods, but from related costs because of the language "proceeding or

accruing" as well as the jurisprudence of this Court. We agree with the Department.

We review ques tions of statutory interpretation de novo. See Centex Int'l. v.

S.C. Dep ' t of Revenue

, 406 S.C. 132, 139, 750 S.E.2d 65, 69 (2013). Tax statutes are

to be interpreted like any other statutes. Alltel Comm c' ns, Inc. v. S

. C

. Dep ' t of

Revenue

, 399 S.C. 313, 3 1 9

- 20

, 731 S.E.2d 869, 872 (2012) (holding, "[t]he usual

rules of statutory construction apply to the interpretation of tax statutes"). W e note

that "the cardinal rule of statutory construction is to ascertain and effectuate the

intent of the legislature." Charleston Cnty. Sch. Dist. v. State Budget & Control Bd.

, 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993). Because " the best evidence of legislative intent

is the text of the statute[ ,] " we turn our focus to the words used. See Creswick v.

Univ

. of S.C.

, 434 S.C. 7 7, 8 2

, 862 S.E.2d 706, 708 (2021).

In South Carolina, individuals who are engaged in the sale of tangible personal

property must pay five percent of the gross proceeds of their sales in taxes. S.C.

Code Ann. § 12

- 3 6

- 910(A) (2014). The statute defines tan gible personal property as

"personal property which may be seen, weighed, measured, felt, touched, or which

is in any other manner perceptible to the senses." Id

. § 12

- 36

- 60 (2014). "Gross

proceeds of sales" is defined as "the value proceeding or accruing from the sale,

lease, or rental of tangible personal property." Id. § 12

- 36

- 90

. (emphasis added).

While the membership in question is itself intangible, T axpayer is liable for

sales tax generally because it is engaged in the sale of tangible personal pro perty

through the sales of books and other merchandise. The question then is whether the

language "value proceeding or accruing from" subjects the bookstore to sales tax on

Millionaire's Club memberships. This turns on the relationship between the

membersh ip and the sale in question.

Within the relevant statutory language, t he term " proceeding " is critical

. When

used as an intransitive verb as it is in the statute, Merriam

- Webster defines "proceed"

to mean " to come forth from a source. " See Proceed

, Mer r iam

- Webster Online,

https://www.merriam

- webster.com/dictionary/proceed ( last visited November 21,

2021) (listing synonyms of proceed as, "spring, arise, rise, originate, derive, flow,emanate, proceed, stem [which all] mean to come up or out of something i nto

existence. " Further delineating the term by saying "proceed stresses place o f origin,

derivation, parentage, or logical cause")

. For a monetary value to proceed from

something

, the value must come from it

. Here, the value of the club memberships

origin ates from the sale of taxable goods because the only benefit to buying the

Millionaire's Club membership is discounts on taxable transactions

. 2 Books

- A

Million does not require membership for entry into its stores, nor does the

membership give any propriet ary rights such as advanced purchasing. The only

difference between a Millionaire's Club membership holder and the general public

is that members pay less per purchase of books and merchandise because they have

opted to pay $25 per year to T axpayer. Allowing Books

- A

- Million to avoid sales tax

on the discounted amount because it has received payment from its customers on a

yearly instead of a per

- purchase basis would be contrary to the South Carolina tax

code. This Court has interpreted our ta x code to hav e broad language which

inextricably links value to sales

. See Travelscape, LLC v. S

. C

. Dep 't of Revenue

, 391

S.C. 89, 97, 705 S.E. 2d 28, 32 (2011) (finding hotel fees, charged by the taxpayer

exclusively for services, were subject to sales ta x under the plain language of section

12

- 36

- 920(A) as gross proceeds because the service was incidental to the purchase

of accommodations). Here

, the ALC recognized this broad interpretation in holding:

South Carolina courts have analyzed the definition o f gross proceeds of

sales several times and have concluded that gross proceeds of sales

includes all value that comes from or is [the] direct result of the sale,

lease, or rental of tangible personal property.

Other states have unique statutory language that yields different results. In

Barnes & Noble v. Huddleston

, the Tennessee court of appeals, in an unpublished

decision, concluded a bookstore's discount membership was nontaxable. See 1996

WL 596955 (Tenn. Ct

. App. 1996). While the facts are similar, the statute involved

is not. The Tennessee provision applied a six

- percent sales tax to the total "sales

price." See T enn. Code Ann. § 67

- 6

- 202(a). The statute defines "sales price" as "the

total amount for which a taxable service or tangible personal property is sold...

provided, that cash discounts allowed and taken on sales shall not be included

. ..."

2 Members get (a) 40% off the list price of current hardcover Books

- A

- Million

Bestsellers, (b) 20% off the list price of all Books

- A

- Million adult hardcover books,

(c) 10% off the marked Books

- A

- Million designed adult hardcover books, (d) free

shipping with online purchases, (e) up to 40% off bestsellers and featured items

online, (f) periodic special promotions online and at Books

- A

- Million Stores, and

(g) one five

- dollar reward card good for 30 days after activation.T enn. Code Ann. § 67

- 6

- 102(25) (1994). Thi s significant differe nce from our state's

"proceeding or accruing language" language led to a diff e rent result. In Tennessee,

the legislature specifically sought to calculate the tax base as a number exclusive of

discounts. In South Carolina, the legislature tied together taxable tang ible goods with

related intangible assets. Therefore, South Carolina's legislative intent is

distinguishable from Tennessee's.

In its brief and in oral argument, counsel for Books

- A

- Million attempted to

bolster its case by arguing that certain " big box " s tores are not being taxed on their

memberships. While these " conditional retail " and/or " members

- only warehouses "

are likely not being taxed on their membership sales, the Department declined to

confirm or deny this

— ostensibly due to taxpayer confidentiali ty

— but proceeded to

accept this proposition arguendo

. Justice Kittredge's dissent 3 would have us treat

this hypothetical admission as the dispositive fact in the case. Whether these stores

are actually suffering this alleged disparate treatment is not at i ssue for the Court to

decide today. Rather, we are asked to determine whether our sales tax statute permits

the Department to tax Books

- A

- Million on their Millionaire's Club memberships

. To be clear, in reaching our conclusion that these memberships are su bject to sales

tax, we do so based on our view of statutory interpretation, not based on any

deference to the Department. We leave the taxability of these other entities for

another day. 4

3 We also note that Justice Kittredge' s dissent reads our argument as one based on

preservation, but that is inaccurate. Outside of this footnote, the word "preservation"

does not appear in the Court's opinion. In our view, there are no preservation issues

in this case. Instead we focus on the facts in the record, not hypotheticals about

parties outside this litigation that were accepted for argument's sake.

When Justice Few pressed at oral argument how this hypothetical disparate

treatment argument effects the outcome of this appeal, Taxpayer failed to offer a

specific legal theory to justify reversing the court of appeals and instead relied on a

general notion of fairness.

4 In so doing, we are reminded of the words of Chief Justice Roberts during his

confirmation hearing that judges should only "call balls and strikes[.]" John G.

Roberts, Jr., Confirmation Hearing, before the United States Judiciary Committee

(September 12, 2005). The issue pitched to us today concerns only Books

- A

Millions' memberships, and that is the issue we resolve.Books

- A

- Million also invites us to compare significantly different businesses

such as golf courses, zoos, museums, and grocery stores

, paint ing a bleak picture of

the havoc 5 which would ensue if the Department's position were affirmed. We

disagree because with Millionaire's Club memberships the only thing that members

rec eive is a discount on taxable retail sales.

The generic private golf club charges a membership fee as a requirement to

play on its course or buy items in its pro shop. This is a conditional retail agreement

whereby the membership provides not for discounts

, but for use. Museums and zoos

are similarly distinguishable. Though most museums and zoos are open to the public,

many charge membership fees for discounted admission. This is not discounted retail

and is charged under a different section of the South Ca rolina tax code that does not

contain the "proceeding or accruing" language at issue here. See generally

, S.C.

Code Ann. § 12

- 21

- 2420 (2017) (making no mention of a tax on "gross proceeds of

sales" and thereby no reference to the "proceeding or accruing" l anguage).

Consistent with its parade

- of

- horribles scenario, Books

- A

- Million also argues

that grocery stores will be impacted by the decision in this case, positing that if an

individual in line at a grocery store check

- out has one item exempt from tax

— a gift

card, for example

— then the Department's interpretation of the "proceeding or

accruing " language would render the entire purchase taxable. Because the pertinent

language is "proceeding" and not "preceding," this argument is unavailing

. 6 A gift

card is not a membership that provides discounts on the purchase of other items in

the grocery basket; rather, it is an alternative form of consideration. When a gift card

is used to purchase a taxable good, there is sales tax on that transaction rather than

5 Contrary to Taxpayer's argument, ruling that the membership is not taxable is the

result most likely to produce havoc. Under the position advanced by Taxpayer,

books could be sold at a 90% or 99% discount as a benefit of membership. This is

unquestionably tax avoidance and is not legally distinguishable from lesser discounts

as present here.

6 Books

- A

- Million is not alone in its confusion of these two words

. Justice James' s

dissent conclud es

, " neither the purchase of a membership, nor the intangible value

it holds, proceeds from an as

- yet nonexistent purchase of merchandise ." Because we

can readily imagine an infinite number of loopholes based on this characterization,

we disagree that the legis lature intended that result. Timing is incidental ; it must be

the relationship between the two items being purchased that is dispositive of whether

one item's value proceeds or accrues from another's.on th e original transaction purchasing the card itself. No interpretation or argument

advanced by the Department in this case would change that distinction or connect

the purchase of gift cards with the taxable items bought along with them in the

original trans action simply because they were purchased at the same time

. 7 Between

the items in the grocery basket, there is no relationship such that one is deriving

value from another. Therefore, value does not proceed or accrue in the way this court

has determined is necessary to levy a tax and this case's outcome would have no

impact on this scenario.

CONCLUSION

The ALC correctly applied section 12

- 36

- 90 to Books

- A

- Million's sale of

Millionaire's Club memberships. The court of appeals did not err in affirming this

interpretation but we modify its opinion to the extent it relied on the principle of

agency deference as support

. A plain reading of t he South Carolina tax code coupled

with the interpretation this Court has repeatedly utilized results in our sales tax being

more inclusive than those of other states. The Millionaire's Club memberships

posses s value based solely on the discounts they affo rd on taxable sales

. Therefore,

Books

- A

- Million's sales of Millionaire's Club memberships are subject to sales tax

in South Carolina.

The decision of the court of appeals is AFFIRMED.

BEATTY, C.J., and FEW, J., concur. JAMES, J., dissenting in a separat e

opinion in which KITTREDGE, J., concurs. KITTREDGE, J., dissenting in a

separate opinion.

7 Indeed, grocery stores regularly sell both taxable a nd non

- taxable items in the same

transaction and, as acknowledged by T axpayer in oral argument before the court of

appeals, the point of sale machine is programmed to make the appropriate

demarcations.JUSTICE JAMES: I respectfully dissent. I would reverse the court of appeals and

hold t he memberships sold by Books

- A

- Million are not subject to a sales tax.

DISCUSSION

A. Standard of Review

Section 1

- 23

- 610(B) of the Administrative Procedures Act sets forth the

appropriate standard of review in an appeal from the Administrative Law Court.

Kiawah Dev. Partners, II v. S.C. Dep't of Health & Env't Control

, 411 S.C. 16, 28,

766 S.E.2d 707, 715 (2014). Specifically, section 1

- 23

- 610(B)(d) provides an

appellate court may reverse the decision of the ALC if the decision is affected by an

error of law. As I will explain, I believe the ALC's decision is control led by its

erroneous interpretation of various provisions of the South Carolina Sales and Use

Tax Act ("the Act"). See S.C. Code Ann. §§ 12

- 36

- 5 to

- 2695 (2014 & Supp. 2021).

Questions of statutory interpretation are questions of law, which we review de

novo. Centex Int'l

, Inc. v. S.C. Dep't of Revenue

, 406 S.C. 132, 139, 750 S.E.2d 65,

69 (2013). "The cardinal rule of statutory construction is to ascertain and effectuate

the intent of the legislature." Charleston Cnty. Sch. Dist. v. State Budget & Co ntrol

Bd.

, 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993). Because "[t]he best evidence of legislative

intent is the text of the statute[,]" we focus upon the words used. Creswick v. Univ.

of S.C.

, 434 S.C. 77, 82, 862 S.E.2d 706, 708 (2021).

Quoting Alltel Comm unications, Inc. v. South Carolina Department of

Revenue

, 399 S.C. 313, 319

- 20, 731 S.E.2d 869, 872 (2012), the majority correctly

states that "[t]he usual rules of statutory construction apply to the interpretation of

tax statutes[.]" More specifically, however, we have concluded that " in statutes

levying taxes, the literal meaning of the words employed is most important, for such

statutes are not to be extended by implication beyond the clear import of the

language used[.]" Cooper River Bridge, Inc. v. S.C. Tax Comm'n

, 182 S.C. 72, 76,

188 S.E. 508, 510 (1936) (quoting United States v. Merriam

, 263 U.S. 179, 187

- 88

(1923)).

The ALC and the court of appeals agreed with the Department that the statutes

unambiguously require Books

- A

- Million to pay a sales t ax on sales of memberships.

The majority of this Court affirms that conclusion. I believe the majority and the

courts below have "extended by implication" the literal meaning of the applicable

statutes, especially section 12

- 36

- 90. I would hold the stat utes unambiguously

provide no sales tax is owed.B. Analysis

Three statutes in the Act are in play in this case

— sections 12

- 36

- 60,

- 90, and

- 910(A). Section 12

- 36

- 910(A) provides that persons who sell tangible personal

property at retail must pay a sa les tax on the gross proceeds of their sales. Section

12

- 36

- 60 defines "tangible personal property" as "personal property which may be

seen, weighed, measured, felt, touched, or which is in any other manner perceptible

to the senses." The parties agree B ooks

- A

- Million memberships are not tangible

personal property. The primary benefits of a membership are discounts on

merchandise and free shipping.

The dispute in this case centers upon the interpretation of the term "gross

proceeds of sales," which is d efined in section 12

- 36

- 90 as "the value proceeding or

accruing from the sale, lease, or rental of tangible personal property." The parties

agree "the sale of tangible personal property" contemplated by section 12

- 36

- 90 is

the sale of merchandise. Of cou rse, Books

- A

- Million collects a sales tax on the sale

of merchandise and pays it over to the Department. The precise question we must

answer is whether the $25 Books

- A

- Million receives from the sale of a membership

is a "value proceeding or accruing from" a later sale of tangible personal property.

The Department argues the answer to this question turns on the general

relationship between the membership and the eventual purchase of tangible

merchandise. The Department contends the statutes unambiguously provide that the

$25 membership payment Books

- A

- Million receives on the front end is a value

"proceeding or accruing from" the sale of merchandise, which occurs on the back

end. Books

- A

- Million contends the statutes do not require payment of a sales tax

o n the memberships because the $25 value Books

- A

- Million receives from the sale

of a membership cannot possibly proceed or accrue from a sale of merchandise that

has not yet occurred. I agree with Books

- A

- Million.

Again, under sections 12

- 36

- 60,

- 90, and

- 910(A), Books

- A

- Million must pay

a sales tax on the value proceeding or accruing from the sale of tangible personal

property. First, I consider the word "value" as it is used in section 12

- 36

- 90.

Merriam

- Webster defines "value" as "the monetary worth o f something." See Value

, Merriam

- Webster, https:// www.merriam

- webster.com/dictionary/value (last visited

June 21, 2022). Because Books

- A

- Million is the taxpayer, we must consider the

value Books

- A

- Million receives from the sale of the membe rship, not the value the

member receives from buying the membership.I next consider the words "proceeding or accruing from" as they are used in

section 12

- 36

- 90. Merriam

- Webster defines "proceed" as "to come forth from a

source." See Proceed

, Merriam

- Webster, https://www.merriam

webster.com/dictionary/proceed (last visited June 21, 2022). Merriam

- Webster

defines "accrue" as "to come as a direct result of some state or action." See Accrue

, Merriam

- Webster, https://www.merriam

- webster.com/dic tionary/accrue (last

visited June 21, 2022).

The statutes require the payment of a sales tax on the value that proceeds or

accrues from the sale of tangible personal property, not from the sale of an intangible

membership. The Department argues "section 1 2

- 36

- 90 has only one reasonable

interpretation

— gross proceeds of sales include all value that proceeds or accrues to

a taxpayer from the sale of tangible personal property." I agree with that general

statement, but the sale of tangible personal property

— m erchandise

— comes after the

sale of the membership. The "value proceeding or accruing from " the sale of

merchandise cannot possibly include the $25 value Books

- A

- Million receives before

it sells the merchandise. I believe the Department's interpretation d oes violence to

the plain meaning of section 12

- 36

- 90.

The majority states "the value of the club memberships originates from the

sale of taxable goods because the only benefit to buying the Millionaire's Club

membership is discounts on taxable transaction s." I again note that because Books

A

- Million is the taxpayer, we must consider the value Books

- A

- Million receives

from the sale of a membership, not the value the member receives from buying the

membership; however, even if we consider the value received by the member, the

majority's reasoning does not track the plain language of section 12

- 36

- 90. Members

realize the benefits of their intangible membership only if they purchase

merchandise. Quite plainly, neither the purchase of a membership, nor the in tangible

value it holds, proceeds from an as

- yet nonexistent purchase of merchandise. 8

8 In its footnote 6, the majority takes issue with this sentence and maintains I have

confused the terms "proceeding" and "preceding." For what it is worth, the quoted

sentence ended my point that we must view the value of the sale of the membership

throug h the eyes of Books

- A

- Million, not the member, but that even if we do view

the transaction through the eyes of the member, the majority's reasoning does not

track the plain language of section 12

- 36

- 90. Whatever the case, I, like the majority,

do not unde rstand Books

- A

- Million's rationale as to how the outcome of this appeal

might impact certain grocery store transactions; however, I know the difference

between the terms "proceeding" and "preceding." The final sentence of theThe majority has written into the Act an exception allowing the Department

to collect a tax on the sale of a non

- tangible item. The legislature can amend t he Act

to subject such a sale to a tax, but this Court does not have that authority. An

exception to the plain and unambiguous language of a statute must come from our

legislature. Doe v. R.D.

, 308 S.C. 139, 142, 417 S.E.2d 541, 543 (1992).

1. Travelscape

The majority cites Travelscape, LLC v. South Carolina Department of

Revenue 9 for the proposition that we have interpreted our tax code to have broad

language which "inextricably links value to sales." I respectfully disagree with that

characterization of Travelscape

. Though the Department insists otherwise, we have

never assigned such a reading to our tax code. The holding in Travelscape was

limited to the unique facts of that case and is of no import to the Department's dispute

with Books

- A

- Million.

Travelscape is an online company providing discount travel services through

a website, Expedia.com. Travelscape entered into agreements with hotels in South

Carolina under which the hotels accepted discounted room rates lower than the rate

offered by the hotel to the general public (the "net room rate"). When a customer

booked a room on the Expedia website, Travelscape charged the customer's credit

card and added to the net room rate a service fee, a facilitation fee, and a tax recovery

charge. Travelsca pe paid the hotel the net room rate and the tax recovery charge,

and it kept the service and facilitation fees. The Department contended Travelscape

was obligated to pay a sales tax on those two fees, and Travelscape contended it was

not.

The pertinent s ales tax provision in Travelscape was section 12

- 36

- 920(A).

Subsection (A) imposes a sales tax on " the gross proceeds derived from the rental or

charges for any rooms" furnished by a hotel. Faced with the question of what

meaning to give "gross proceeds" as used in section 12

- 36

- 920(A), we used the

definition of "gross proceeds of sales" set forth in section 12

- 36

- 90(1)(b)(ii)

(defining "gross proceeds of sales" as "the value proceeding or accruing from

majority's footnote 6 shows t he majority does not read the words of section 12

- 36

-

90 as they are plainly written. The majority states, "[t]iming is incidental; it must be

the relationship between the two items being purchased that is dispositive of whether

one item's value proceeds o r accrues from another's." I disagree with that statement.

Timing is not "incidental" under section 12

- 36

- 90. It is paramount.

9 391 S.C. 89, 705 S.E.2d 28 (2011).the

. . . rental of tangible personal property

. . . without any deduction for

. . . the

cost of materials, labor, or service"). The narrow issue before us was whether the

service and facilitation fees paid by customers to Travelscape were taxable under

section 12

- 36

- 920. We held that "[b]ecause the cost of services is specifically

included in the definition of gross proceeds of sales,

. . . the fees retained by

Travelscape for its services are taxable as gross proceeds." Id

. at 98, 705 S.E.2d at

33.

Our holding in Travelscape was narrow and tailored to the facts of that case:

the service and facilitation fees charged by Travelscape were, by clear statutory

provision, part of the gross proceeds subject to sales tax. However, in the instant

case, the court of appeals adopted the Department's reading of T ravelscape by

adding the verbiage that our holding in Travelscape was partly controlled by our

conclusion that the service fees were "merely incidental" to the purchase of the hotel

accommodations. Books

- A

- Million

, 430 S.C. at 394, 844 S.E.2d at 402. The phrase

"merely incidental," and for that matter, the word "incidental," appear nowhere in

Travelscape

.

2. Meyers Arnold

The Department relies heavily upon the court of appeals' decision in Meyers

Arnold, Inc. v. So uth Carolina Tax Commission 10 for the proposition that "but for"

the sale of tangible merchandise, Books

- A

- Million would not sell memberships. In

that case, the court of appeals held lay away fees Meyers Arnold received were

subject to sales tax as gross p roceeds of sales. Under the lay away approach to sales,

if a customer wanted to buy an item but did not want to pay the entire sales price up

front, the store might offer to hold the item aside for the customer and charge a lay

away fee. Meyers Arnold co ntended it did not have to pay sales tax on the lay away

fee. As the court of appeals noted, the pertinent statute in that case, section 12

- 35

- 30, defined "gross proceeds of sales" as "the value proceeding or accruing from the

sale of tangible personal pr operty

. . . without any deduction for service cost." Id. at

307, 328 S.E.2d at 923. The court of appeals concluded that "[b]ut for the lay away

sales, Meyers Arnold would not receive the lay away fees. The fees are obviously

charged for the service ren dered in making lay away sales." Id

. The court of appeals

simply held the lay away fee was a service cost incurred in the sale of tangible

personal property and, pursuant to statute, was included in the seller's "gross

proceeds of sales." The court of a ppeals' holding in Meyers Arnold is not applicable

in the least to the memberships sold by Books

- A

- Million.

10 285 S.C. 303, 328 S.E.2d 920 (Ct. App. 1985).3. Rent

- A

- Center East

The Department argues the court of appeals' holding in Rent

- A

- Center East,

Inc. v. South Carolina Department of Revenue 11 req uires the application of a sales

tax to Books

- A

- Million memberships. I disagree. In that case, Rent

- A

- Center

operated establishments allowing customers to rent

- to

- own durable consumer goods

such as furniture, appliances, and electronics. In conjunction with these transactions,

Rent

- A

- Center offered an Optional Liability Waiver ("waiver"). If a customer

purchased a waiver, Rent

- A

- Center waived any right it had under the rent

- to

- own

contract to demand the customer pay for damage to the goods purchased und er the

contract. The waiver absolved the customer of the risk of loss if the customer paid

all installments, including the waiver fee, through the date of loss. Rent

- A

- Center

did not charge a sales tax on the waiver fee. After an audit, the Department

d emanded Rent

- A

- Center pay a sales tax on the waiver fees for the audit period. The

court of appeals held that because the waivers and the rental agreements "were

inextricably linked, the value proceeding from the Rental Agreements included the

value [Rent

- A

- Center] received from the Waivers[.]" Id. at 592

- 93, 824 S.E.2d at

222

- 23.

The Department argues Rent

- A

- Center requires the imposition of a sales tax

on Books

- A

- Million memberships because there is no meaningful difference

between the money collecte d for a liability waiver and the Books

- A

- Million

membership fee. I disagree. The waiver fees collected by Rent

- A

- Center were

collected per transaction, while the Books

- A

- Million membership fees are not.

4. Agency Deference

The Department argues its inte rpretation and application of the Act are

entitled to deference. In Sierra Club v. South Carolina Department of Health &

Environmental Control

, we summarized the deference owed to an agency's

interpretation of a statute or regulation the agency is charged with administering:

"The Court generally gives deference to an administrative agency's

interpretation of an applicable statute or its own regulation." Brown v.

Bi

- Lo, Inc.

, 354 S.C. 436, 440, 581 S.E.2d 836, 838 (2003). "If the

statute or regulation is silent or ambiguous with respect to the specific

issue, the court then must give deference to the agency's interpretation

of the statute or regulation, assuming the interpretation is worthy

of deference ." Kiawah

, 411 S.C. at 33, 766 S.E.2d at 717.

11 425 S.C. 582, 824 S.E.2d 217 (Ct. App

. 2019)."Nevertheless, where

. . . the plain language of the statute or regulation

is contrary to the agency's interpretation, the Court will reject the

agency's interpretation." Brown

, 354 S.C. at 440, 581 S.E.2d at 838.

Therefore, in summary, "We defer to an a gency interpretation unless it

is 'arbitrary, capricious, or manifestly contrary to the statute or

regulation.'" Kiawah

, 411 S.C. at 34

- 35, 766 S.E.2d at 718 (quoting

Chevron

, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.

, 467 U.S. 837, 844

(1984)).

426 S. C. 236, 256, 826 S.E.2d 595, 606 (2019) (cleaned up). Because the

Department's interpretation of the applicable statutes is manifestly contrary to the

plain meaning of the statutes, I would give no deference to that interpretation.

CONCLUSION

In Jack Ulmer, Inc. v. Daniel

, we reviewed a circuit court ruling addressing

the applicability of the unemployment tax act to a taxpayer. 193 S.C. 193, 7 S.E.2d

829 (1940). We quoted with approval the entire circuit court order, in which the

circuit court pointe dly noted, "The Act is a taxing law and should be strictly

construed, and the Court does not think that anyone who is liable for contributions

should escape liability, but neither does the Court think that the meaning and

interpretation of the Act should b e stretched so as to include people not specifically

included therein." Id. at 200, 7 S.E.2d at 832. I agree with this sentiment. I see no

reason to permit a taxing statute to be stretched beyond its plain meaning to include

a transaction that does not fall within the grip of the tax. In my view, the court of

appeals' interpretation of the term "gross proceeds of sales" and the phrase

"proceeding or accruing from" stretches the Act beyond its plain meaning. I would

reverse the court of appeals and hold the Books

- A

- Million membership fee is not

subject to a sales tax.

KITTREDGE, J., concurs.JUSTICE KITTREDGE: I join Justice James in dissenting. I write separately to

offer a few additional thoughts to Justice James's persuasive dissent, with which I

fully concur.

The Department of Revenue (the Department) acknowledges the Books

- A

- Million

club membership is not tangible personal property. For example, in the

Administrative Law Court, the Department stated it "has never argued that the

membership program is tangible personal property." Instead, the Department

advances a strained interpretation of the phrase "proceeding or accruing from" in

section 12

- 36

- 90 of the South Carolina Code (Supp. 2021). According to the

Department, anything it believes is "inextricably linked" to a sale of tangible

personal property is subject to the state sales tax. The majority reaches its decision

today by adopting the Department's argument. This interpretation of "proceeding

or accruing from" may have ostensible appeal from a public policy standpoint, but,

as Justice James demonstrates, it is contrary to our statutes.

Beyon d Justice James's dispositive statutory construction position, Books

- A

Million's allegation of disparate treatment is troubling

— it is alleged the

Department has chosen to treat other, similar marketing approaches differently.

For instance, Books

- A

- Million contends that Costco and Sam's Club sell

memberships that allow members to purchase tangible personal property at

reduced or wholesale prices. Yet, according to Books

- A

- Million, the Department

gives Costco and Sam's Club a pass, exempting those membershi p fees from the

sales tax base. At Costco, for example, a membership is mandatory, and only

members are allowed to purchase goods. On the other hand, any member of the

public

— including non

- members

— may purchase an item from Books

- A

- Million.

It would seem the Department's "inextricably linked" approach would easily

capture Costco's membership fees in the sales tax base. I do not suggest for a

moment that Costco's (or Sam's Club's) membership fees should be subject to the

state sales tax. Indeed, in disse nting I find based on our statutes that the

membership fees of Books

- A

- Million and other similarly situated taxpayers are not

subject to the state sales tax. But Justice James and I have lost this argument, and

the majority's decision puts Books

- A

- Million 's disparate treatment challenge front

and center.

The majority suggests the disparate treatment argument belatedly arose on appeal.

In truth, Books

- A

- Million has pressed this challenge from the beginning. The

record is replete with Books

- A

- Million rai sing the concern. The following, taken

from Books

- A

- Million's argument in the Administrative Law Court, is typical ofits constant drum beat crying foul over the Department's apparently inexplicable,

unequal practice of taxing similar membership schemes:

So why is the Department attempting to take the contrary positions

that the membership fees charged by Sam's Club and Costco are not

subject to sales tax

– but Books

- A

- Million are? The membership fees

charged by Sam's Club "would not exist without [Sam's ] sale of

tangible personal property." "Said differently, but for [Sam's Club's]

sales of tangible personal property, [Sam's Club] would not receive

the [Sam's Club] Membership Fees." So, obviously "The mere fact

that the [Sam's Club] Membership Fees wou ld not exist without

[Sam's Club's] sales of tangible personal property [does not] make the

[Sam's Club] Membership Fees part of the value proceeding or

accruing from the [Sam's Club's] sales of tangible personal

property. Accordingly, the Membership Fees [charged by Sam's

Club] are [not] includable in the [Sam's Club] gross proceeds of sales

and subject to sales taxes."

Does this case turn on the fact that Books

- A

- Million doesn't have a

"membership

- only warehouse?" Obviously, no one would pay to join

a membership

- only warehouse if it didn't sell goods (or services).

Does this case turn on the fact that Books

- A

- Million doesn't offer an

adequate selection of brand

- name merchandise? Books

- A

- Million

claims that it does. It does meet the Sam's Club/Costco test that all

membership types receive the same benefits.

So what's the difference?

(Quoting the Department's reasoning to tax the Books

- A

- Million memberships,

with alterations inserted by Books

- A

- Million.) The majority wants to paint a

picture that thi s challenge was raised by Books

- A

- Million only "[i]n its brief and

oral argument," and thus the Court should not address this unpreserved issue.

Moreover, the majority lectures that we should not address unpreserved issues by

citing to the familiar mantra that judges, like umpires, "should only 'call balls and

strikes.'" I agree. But it is disingenuous to suggest that this issue was raised for

the first time in brief and oral argument. As demonstrated above, Books

- A

- Million

has been throwing this pitch since the first inning. I do not know whether Books

A

- Million's pitch is a ball or a strike due to the Department's recalcitrance in

helping us explore the issue, but I believe we have a duty to make the call.A cornerstone of the law is the unwavering c ommitment to ensure that the law is

applied even handedly

— similarly situated parties must be fed from the same

spoon. The law abhors the dissimilar treatment of the similarly situated. One

would think the Department would welcome the opportunity to respo nd to and

refute the troubling charge made throughout this litigation by Books

- A

- Million

regarding the disparate treatment of taxpayers, but it ran from the opportunity

instead.

At oral argument, the Department was invited to distinguish Books

- A

- Million's

taxable membership fee from the non

- taxable membership fees at Costco and

Sam's Club. Regrettably, the Department declined the Court's invitation to explain

why Costco's and Sam's Club's membership fees are not subject to sales taxes.

Nonetheless, in it s brief, the Department offered what I believe is a weak rationale

to avoid judicial scrutiny of the alleged disparate treatment: The Department

contends its decision to treat Books

- A

- Million differently from Costco and Sam's

Club is entitled to "deference ." The concept of deference to an administrative

agency has no place on the issue of alleged unlawful disparate treatment of

taxpayers. Perhaps in recognition of the lack of merit in its deference defense, the

Department's brief concludes by claiming it does not "allow a retailer to use a

discount club as a means to avoid payment of sales tax." The Department

continues, "Rather than charging the actual retail price for the merchandise, a

retailer could simply sell a coupon or club membership that provide s extensive

discounts to the consumer and then only charge sales tax on the greatly reduced

purchase price." This, the Department states, "would be an improper .

. . method

of impermissibly lowering the sales tax obligations." Books

- A

- Million counters

th at this is precisely the situation with Costco and Sam's Club

— the non

- taxable

club membership allows the member to purchase merchandise at a reduced price.

Notably, the Department is silent to Books

- A

- Million's rejoinder. That silence is

accepted by the majority.

I offer no opinion on the merits of the Department's decision to treat Books

- A

Million differently from Costco and Sam's Club. Perhaps there is a valid reason

why the Department treats these taxpayers differently, but I am unable to

determine a valid reason from this record. Given the importance of ensuring that

all similarly situated taxpayers are treated equally, I would prefer this Court not

allow the Department to dodge such an important challenge. The charge of

disparate treatment of simil arly situated taxpayers is squarely before the Court, and

I would insist upon a resolution of this challenge

— force the Department to address

the issue and call it a ball or a strike

— to ensure that our taxation laws are applied

equally to all similarly situ ated taxpayers, free from the Department's arbitraryselection of winners and losers.

I dissent.