AMERICAN MULTI-CINEMA, INC. A/K/A AMC THEATERS
NEWELL NORMAND, SHERIFF AND EX-OFF ICIO TAX COLLECTOR FOR THE PARISH OF JEFFERSON
APPEAL FROM THE BOARD OF TAX APPEAL STATE OF LOUISIANA NO.
L00215 HONORABLE CADE R. COLE, JUDGE PRESIDING
Counsel For Plaintiff/Appellee, American Multi-Cinema, Inc.
A/K/A amc Theaters Jaye A. Calhoun Linda S. Akchin William J.
Counsel For Defendant/Appellant, Newell Normand Sheriff And
Ex-Officio Tax Collector, Jefferson Parish And Jefferson
Parish Bureau Of Revenue And Taxation Kenneth C. Fonte
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
John J. Molaison, Jr.
G. GRAVOIS JUDGE.
Newell Normand, Sheriff and Ex-Officio Tax Collector for the
Parish of Jefferson, appeals a judgment of a Louisiana Board
of Tax Appeals judge which granted a motion for summary
judgment filed by American Multi-Cinema, Inc., a/k/a AMC
Theaters,  finding that the annual membership fees
for AMC's Stubs Rewards Program are not subject to
Jefferson Parish sales taxes because those fees are not a
taxable "sale of service" for purposes of La. R.S.
47:301(14)(b)(i)(aa). For the following reasons, we affirm.
AND PROCEDURAL HISTORY
Theaters is a business headquartered in Leawood, Kansas,
operating movie theaters nationwide, with three locations in
Jefferson Parish. Pertinent to this case, on April 1, 2011,
AMC introduced a loyalty rewards program to its patrons
called the "Stubs Rewards Program," which allows
those patrons who purchase a Stubs Rewards membership for $12
per year to accrue "virtual rewards" on the
purchases of goods and services at the theaters. For every
$100 Stubs Rewards members spend on goods and services at
AMC, they accrue a virtual reward of $10 that they can use
toward the future purchase of goods and services at the
theaters.  Stubs Rewards members also get free
upgrades on fountain drinks and popcorn and waiver of certain
online ticketing fees.
29, 2015, the Sheriff commenced an audit of AMC's three
Jefferson Parish locations for sales/use taxes, for the audit
period of June 1, 2011 through May 31, 2015. In its November
2, 2015 audit reports, the Sheriff determined that AMC owed
sales taxes on both the sale and the renewal of the
membership fees in its Stubs Rewards Program. On December 23,
2015, the Sheriff issued a "Notice of Delinquent Taxes -
Formal Assessment" to AMC for each of its Jefferson
Parish theater locations, noting the amount of taxes due and
notifying AMC that it had thirty calendar days from the date
of the notice to appeal to the Board of Tax Appeals for
redetermination of the assessments.
AMC filed a "Petition for Redetermination of Formal
Assessment" with the Board of Tax Appeals, arguing that
the sale of memberships in the Stubs Rewards Program does not
constitute the purchase of a taxable service. Following
motion practice and discovery, the parties filed
cross-motions for summary judgment. After a hearing on the
cross-motions for summary judgment, the Board of Tax Appeals
judge rendered a written judgment on March 12, 2018 granting
AMC's motion for summary judgment. In his judgment,
considering the cross-motions for summary judgment, the Board
of Tax Appeals judge found that there was no genuine issue of
material fact that the annual fees for membership in
AMC's Stubs Rewards Program are not subject to Jefferson
Parish sales taxes because those fees are not for the sales
of tangible personal property or for sales of any taxable
services. Further, there was no genuine issue of material
fact that those fees are not for admissions to places of
amusement, and are not for "the furnishing, for dues,
fees, or other consideration, of the privilege of access to
clubs or the privilege of having access to or the use of
amusement, entertainment, athletic, or recreational
facilities" for purposes of La. R.S.
47:301(14)(b)(i)(aa). Additionally, the Board of Tax Appeals
judge found that the assessments that were issued on December
23, 2015 were made in error and no additional sales and/or
use taxes, penalty, or interest was owed by AMC. This timely
an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as
to material fact and that the mover is entitled to judgment
as a matter of law. La. C.C.P. art. 966(A)(3). A genuine
issue of material fact is one as to which reasonable persons
could disagree; if reasonable persons could reach only one
conclusion, there is no need for trial on that issue and
summary judgment is appropriate. King v. Illinois Nat.
Ins. Co., 08-1491 (La. 4/3/09), 9 So.3d 780, 784.
burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue
that is before the court on the motion for summary judgment,
the mover's burden on the motion does not require him to
negate all essential elements of the adverse party's
claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements
essential to the adverse party's claim, action, or
defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. La. C.C.P. art.
courts review summary judgments de novo using the
same criteria applied by trial courts to determine whether
summary judgment is appropriate. Pizani v. Progressive
Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d
1086, 1087. A de novo review or an appeal de
novo is an appeal in which the appellate court uses the
trial court's record, but reviews the evidence and law
without deference to the trial court's rulings.
Wooley v. Lucksinger, 06-1140 (La.App. 1 Cir.
12/30/08), 14 So.3d 311, 352; Sarasino v. State through
Department of Public Safety and Corrections, 16-408
(La.App. 5 Cir. 3/15/17), 215 So.3d 923, 928. The decision as
to the propriety of a grant of a motion for summary judgment
must be made with reference to the substantive law applicable
to the case. Muller v. Carrier Corp., 07-770
(La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885.