Ziegfield v. Ador ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ZIEGFIELD INC., d/b/a LE’ GIRLS CABARET, Plaintiff/Appellant,
v.
ARIZONA DEPARTMENT OF REVENUE, Defendant/Appellee.
No. 1 CA-TX 16-0001
FILED 10-6-2016
Appeal from the Arizona Tax Court
No. TX2014-000136
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
Law Offices of James H. Hays PLC, Tempe
By James H. Hays
Counsel for Plaintiff/Appellant
Arizona Attorney General’s Office, Phoenix
By Scot G. Teasdale
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.
ZIEGFIELD v. ADOR
Decision of the Court
K E S S L E R, Judge:
¶1 Ziegfield, Inc. (“Ziegfield”) appeals the tax court’s grant of
summary judgment in favor of the Arizona Department of Revenue (the
“Department”). For the following reasons, we conclude that Ziegfield is
liable for the transaction privilege tax under the amusement classification.
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Ziegfield operated Le’ Girls Cabaret (the “Club”), an adult
club offering non-alcoholic beverages and live nude performances licensed
under Phoenix City Code § 10-131(2) (2016). After Ziegfield filed amended
tax returns requesting a refund of transaction privilege taxes, the
Department commenced an audit for the period from February 1, 2008
through August 31, 2011. The audit resulted in the issuance of a deficiency
of $10,130.43 assessed under the amusement classification of the transaction
privilege tax. See Ariz. Rev. Stat. (“A.R.S.”) § 42-5073 (2013).1 Ziegfield
protested the assessment through the administrative process and lost.
¶3 After exhausting its administrative remedies, Ziegfield filed a
complaint in tax court. The parties filed cross-motions for summary
judgment. The tax court granted the Department’s motion and denied
Ziegfield’s motion, concluding that the Club’s performances constituted
“shows” and the income Ziegfield realized was subject to the amusement
tax.
¶4 Ziegfield timely appealed from the tax court’s judgment, and
we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -170(C)
(2016).
LEGAL DISCUSSION
¶5 This Court reviews de novo the tax court’s ruling on the
parties’ cross-motions for summary judgment. See Wilderness World, Inc. v.
Dep’t of Revenue State of Ariz., 182 Ariz. 196, 198 (1995) (as amended). This
case involves an issue of statutory interpretation, which we also review de
novo. See Southwest Airlines Co. v. Ariz. Dep’t of Revenue, 217 Ariz. 451, 452,
¶ 6 (App. 2008). In reviewing tax statutes, we interpret them “strictly
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
2
ZIEGFIELD v. ADOR
Decision of the Court
against the state, and any ambiguities are resolved in favor of the taxpayer.”
Wilderness World, 182 Ariz. at 199.
¶6 Arizona law imposes a transaction privilege tax upon the
privilege of engaging in business within the state. See Home Depot USA, Inc.
v. Ariz. Dep’t of Revenue, 230 Ariz. 498, 500, ¶ 8 (App. 2012). The taxable
event is the act of engaging in business, and the tax is levied against “the
amount or volume of business transacted.” A.R.S. § 42-5008(A) (Supp.
2016); Ariz. State Tax Comm’n v. Sw. Kenworth, Inc., 114 Ariz. 433, 436 (App.
1977). At issue in this case is whether Ziegfield’s operation of an adult
cabaret rendered it liable for a transaction privilege tax under the
amusement classification. See A.R.S. § 42-5073.2
I. The Club’s Performances Were “Shows”
¶7 We first address whether Ziegfield’s business fell within the
scope of the amusement classification. When interpreting tax statutes, we
“begin with the words of the operative statute.” Ariz. State Tax Comm’n v.
Staggs Realty Corp., 85 Ariz. 294, 297 (1959). The plain language of the
statute provides us with the best evidence of legislative intent. See Chevron
U.S.A. Inc. v. Ariz. Dep’t of Revenue, 238 Ariz. 519, 521, ¶ 9 (App. 2015)
(analyzing an exemption from the transaction privilege tax). “If a statute’s
language is clear and unambiguous, we apply it without resorting to other
methods of statutory interpretation.” Hayes v. Cont’l Ins. Co., 178 Ariz. 264,
268 (1994); see also Bustos v. W.M. Grace Dev., 192 Ariz. 396, 398 (App. 1997)
(“If statutory language is clear and unambiguous, it is normally conclusive
unless clear legislative intent to the contrary exists or impossible or absurd
consequences would result.”).
¶8 Pursuant to A.R.S. § 42-5073, the amusement classification is
comprised of “the business of operating or conducting theaters, movies,
operas, shows of any type or nature” and other specified activities. A.R.S.
§ 42-5073(A) (emphasis added). The Department argues, and the tax court
found, that the Club was in the business of conducting “shows.”
Conversely, Ziegfield argues the Club’s performances are not “shows”
within the meaning of § 42-5073.
¶9 In construing tax statutes, we give words their “plain and
ordinary meaning.” Wilderness World, 182 Ariz. at 198 (citation omitted); see
2 Portions of Ziegfield’s income were taxed under the restaurant and
retail classifications, which it does not challenge.
3
ZIEGFIELD v. ADOR
Decision of the Court
also A.R.S. § 1-213 (2016) (“Words and phrases shall be construed according
to the common and approved use of the language.”). To determine the
plain and ordinary meaning of the word “show,” we refer to “established
and widely used dictionaries.” W. Corr. Grp., Inc. v. Tierney, 208 Ariz. 583,
587, ¶ 17 (App. 2004) (citation omitted).
¶10 The online version of the Merriam-Webster dictionary offers
three meanings for “show” as might be relevant in the immediate case: (1)
“a performance in a theater that usually includes singing and dancing,” (2)
“a public performance that is intended to entertain people,” (3) “a
television or radio program.” (Emphasis added.) Merriam-Webster
Dictionary, www.merriam-webster.com/dictionary/show.3 We apply the
second meaning here.
¶11 The Club was licensed as an “adult cabaret,” a term which is
defined by Arizona law to include clubs that feature “live performances.”
See A.R.S. § 13-1422(G)(3) (Supp. 2016); see also Phoenix City Code § 10-
131(2) (defining an adult cabaret as a commercial establishment featuring
live performances or activities involving the exposure of specified
anatomical areas). In tax court, Ziegfield described its cabaret business as
follows:
The club had three stages, one large one and two smaller ones.
During a stage performance, the entertainer would typically
slowly remove her costume while engaging in some form of
dancing or slow movements of a sexually suggestive nature.
Ziegfield referred to its dancers as “performers” or “entertainers” and to
their dances as “stage performances.”
¶12 Applying the plain meaning of the word show— “a public
performance that is intended to entertain people”—we conclude that
Ziegfield was in the business of conducting shows; therefore, its business
fell within the scope of the amusement tax.4
3 See also 2, The Compact Edition of the Oxford English Dictionary at
2803 (def. of “show” II(2)(c)) (1971) (“To present oneself to a person or
persons in order to be looked at.”).
4 Ziegfield argues the phrase “shows of any type or nature”
follows the words “theaters, movies, operas,” all of which “describe shows
with a common thread.” It urges us to apply the doctrine of ejusdem
generis, “where general words follow the enumeration of particular classes
4
ZIEGFIELD v. ADOR
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II. All the Fees Were Taxable
¶13 Having determined that Ziegield’s business fell within the
scope of the amusement tax, we must determine whether certain fees
collected by the Club derived from the business of conducting shows. On
appeal, Ziegfield argues that certain fees it collected from performers were
license fees for the lease of physical space and that the licensing revenues
were not taxable as amusement receipts.
¶14 Pursuant to § 42-5073, the amusement tax applies to “the
gross proceeds of sales or gross income derived from the business.” A.R.S.
§ 42-5073(B) (emphasis added). The statutes define “business” broadly to
include “all activities or acts, personal or corporate, engaged in or caused
to be engaged in with the object of gain, benefit or advantage, either
directly or indirectly.”5 A.R.S. § 42-5001(A)(1) (Supp. 2016) (emphasis
added). The transaction privilege statutes establish the following
presumption:
[I]t is presumed that all gross proceeds of sales and gross
income derived by a person from business activity classified
under a taxable business classification comprise the tax base
for the business until the contrary is established.
A.R.S. § 42-5023 (2013).
¶15 At issue here are four fees the Club collected from the
performers. The Club collected a “house fee” and a “manager fee” at the
end of each night. These two fees were not tied to a particular performance
of persons or things, the general words should be construed as applicable
only to persons or things of the same general nature or class of those
enumerated.” Wilderness World, 182 Ariz. at 199 (citations omitted). As our
supreme court has explained, the rule of ejusdem generis is “only one of
many [rules of statutory construction] which are resorted to, if necessary,
to attempt to expose some unknown legislative intent.” Alvord v. State Tax
Comm’n, 69 Ariz. 287, 291 (1950). If the statutory language is clear, we apply
it “without resorting to other methods of statutory interpretation.” Bilke v.
State, 206 Ariz. 462, 464, ¶ 11 (2003) (citation omitted). We need not apply
the rule of ejusdem generis here as the language of § 42-5073 is clear.
5 Gross income means “the gross receipts of a taxpayer derived from
trade, business, commerce or sales.” A.R.S. § 42-5001(A)(4).
5
ZIEGFIELD v. ADOR
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and were adjusted downward if the performer had a slow night.6 The Club
also collected a “couch fee” for each one-on-one dance and a “VIP fee” for
“more private” performances of “greater duration.” The customer paid the
couch fee to the performer, who in turn paid a portion to the Club. The
customer paid the VIP fee directly to the Club.
¶16 Ziegfield’s amusement tax liability extended to all gross
income derived either directly or indirectly from the business of conducting
“shows of any type or nature.” A.R.S. §§ 42-5001(A)(1), -5073. Our review
of the record confirms that the door fees,7 the house fees, the manager fees,
the couch fees, and the VIP fees all constituted income derived from the
Club’s nude dancing shows whether received directly from the customers
or indirectly through the performers. Accordingly, the income generated
from these fees was taxable under A.R.S. § 42-5073.
CONCLUSION
¶17 For the foregoing reasons, we affirm the tax court’s grant of
summary judgment in favor of the Department. The Department is entitled
to its costs on appeal upon compliance with Arizona Rule of Civil Appellate
Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
6 The fact that these fees varied in relation to how much money the
performer made in a given night suggests the arrangement constituted fee
splitting rather than the lease or rental of real property. Although Ziegfield
creatively called these arrangements a lease or license it does not make it
so. “What’s in a name? That which we call a rose/By any other name
would smell as sweet.” William Shakespeare, Romeo and Juliet act 2, sc. 2.
7 The Club charged a cover charge or door fee for entrance to the Club.
6