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Royal Food Distributors Inc. v. Director

June 16, 1995

ROYAL FOOD DISTRIBUTORS, INC., PLAINTIFF
v.
DIRECTOR, DIVISION OF TAXATION, DEFENDANT.



The opinion of the court was delivered by: Andrew

In this state tax case, plaintiff, Royal Foods Distributors, Inc., contests a determination by defendant, Director of the Division of Taxation, denying plaintiff's claim for a refund of litter control taxes previously paid by plaintiff for tax years 1991 and 1992. Generally, plaintiff maintains that the perishable food products which it sold to retail stores in disposable containers, packages or wrappings for resale by those stores were not subject to the litter control tax, and therefore, the taxes it erroneously paid should be refunded. The Director, in response, argues that plaintiff's products are within the plain language of the governing statutory provisions and are clearly subject to tax for the years at issue.

As noted in United Jersey Bank v. Tax. Div. Dir., 12 L. Ed. 2d 516 (Tax 1992), the "litter control tax is an excise tax on the privilege of engaging in business in New Jersey as a manufacturer, wholesaler, distributor or retailer of litter-generating products measured by the gross receipts from sales of such products. . . ." Id. at 519-20.

The parties have stipulated the facts. Plaintiff, a division of Fleming Foods East, Inc., is a wholesale distributor of perishable food products to retail stores. Among the products sold and distributed by plaintiff are meats, cheeses, fruits and vegetables. These products are shipped to plaintiff in a pre-wrapped form, in bulk, in cardboard boxes. The packaging containers in which these products are eventually sold to retail customers vary and are determined by the particular manufacturer. The containers include plastic wrap for meat and cheese, plastic containers for yogurt and cream cheese and aluminum foil for certain types of cream cheese. All products are shipped by plaintiff to its customers in the same packaging as received by plaintiff from its suppliers or manufacturers.

Plaintiff filed litter control tax returns and paid the corresponding taxes for tax years 1991 and 1992. Plaintiff subsequently filed refund claims for 1991 and 1992 in the amount of $30,284 and $37,772, respectively. The Director denied the claims for refunds and plaintiff filed a written protest requesting a hearing with the Director as permitted by N.J.S.A. 54:49-18. A conference between the parties was held, following which the Director issued a final determination upholding the denial of plaintiff's refund claims. Thereafter, plaintiff filed a complaint with this court challenging the Director's denial of plaintiff's claims for refund of litter control taxes.

The Clean Communities and Recycling Act, N.J.S.A. 13:1E-92 et seq., was amended by L. 1985, c.533, § 6, N.J.S.A. 13:1E-99.1, to provide a tax on the sale of litter-generating products. The legislative design of the litter control tax is to provide funds to finance a statewide anti-litter program. See Senate Revenue, Finance and Appropriations Committee Statement to L. 1986, c. 187. As I have previously noted, the litter control tax is measured by the gross receipts from the sale of litter-generating products. Consequently, the taxing scheme requires an identification of all sales of litter-generating products as defined by the statute. "Litter-generating products" are defined in N.J.S.A. 13:1E-94e as follows:

"Litter-generating products" means the following specific goods [1] which are produced, distributed, or purchased in disposable containers, packages or wrappings ; or [2] which are not usually sold in packages, containers, or wrappings but which are commonly discarded in public places; or [3] which are of an unsightly or unsanitary nature, commonly thrown, dropped, discarded, placed, or deposited by a person on public property, or on private property not owned by him:

(1) Beer and other malt beverages;

(2) Cigarettes and tobacco products;

(3) Cleaning agents and toiletries;

(4) Distilled spirits;

(5) Food for human or pet consumption ;

(6) Glass containers sold as such;

(7) Groceries;

(8) Metal Containers sold as such;

(9) Motor vehicle tires;

(10) Newsprint and magazine paper stock;

(11) Drugstore sundry products, but not including prescription drugs or nonprescription drugs;

(12) Paper products and household paper;

(13) Plastic or fiber containers made of synthetic material and sold as such, but not including any container which is routinely reused, has a useful life of more than one year and is ordinarily sold empty at retail;

(14) Soft drinks and carbonated ...


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