                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2011-CA-01780-SCT

MOBILITY MEDICAL, INC., AND MOBILITY
MEDICAL OF NORTH MISSISSIPPI, LLC

v.

MISSISSIPPI DEPARTMENT OF REVENUE

DATE OF JUDGMENT:                          11/03/2011
TRIAL JUDGE:                               HON. DENISE OWENS
COURT FROM WHICH APPEALED:                 HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                   BRANDON C. DIXON
                                           HARRIS H. BARNES, III
ATTORNEYS FOR APPELLEE:                    JAMES L. POWELL
                                           KENITTA FRANKLIN TOOLE
NATURE OF THE CASE:                        CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                               AFFIRMED - 06/06/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Mississippi law requires Mobility Medical, Inc., and Mobility Medical of North

Mississippi, LLC, (together referred to herein as “Mobility”) to pay a tax on their gross

medical equipment sales proceeds, including sales to customers who are covered by the

Federal Employees Health Benefits Plan (FEHBP). Federal law prohibits states from levying

direct or indirect taxes on insurance carriers who participate in the FEHBP. The question

before us today is whether this federal law prohibits the State of Mississippi from requiring

Mobility to pay sales taxes on equipment it sells to individuals who are covered by the

FEHBP. We hold that the tax on Mobility’s gross sales, is not a tax on FEHBP or any other
health-benefits insurance plan. Accordingly, the federal law that prohibits the State from

taxing FEHBP or its participating insurance carriers does not preempt the Mississippi law

that requires Mobility to pay the tax on its gross sales, including those to individuals covered

by FEHBP.

                           FACTS AND PROCEDURAL HISTORY

¶2.    Mobility is a retail seller of medical equipment. In 2008, the Mississippi Department

of Revenue reclassified certain sales of medical equipment paid for by third-party payors on

behalf of government agencies as taxable transactions, subjecting Mobility to the 7% state

sales tax on the gross proceeds of these retail sales from June 2004 through June 2007.

¶3.    The third-party payors are participants in the FEHBP, which provides federal

employees, retirees, and their families subsidized healthcare benefits. Under the FEHBP, the

United States Office of Personnel Management contracts with insurance carriers – the third-

party payors – to create healthcare plans for enrollees.

¶4.    The Federal Employees Health Benefits Act (FEHBA)1 – the federal statute creating

the FEHBP – requires enrollees and the federal government to make matching contributions

which are deposited into the Employees Health Benefits Fund (the fund). The fund is used

to reimburse insurance carriers which initially pay enrollees’ claims. The FEHBA prohibits

states from assessing taxes “directly or indirectly, on a carrier or an underwriting or plan

administration subcontractor of an approved health benefits plan . . . with respect to any

payment made from the Fund.” 2


       1
           5 U.S.C. §§ 8901-8913 (2006).
       2
           5 U.S.C. § 8909(f)(1) (2006).

                                               2
¶5.     Mobility challenged the tax, claiming the statute that created it was preempted by

federal law. The Mississippi State Tax Commission affirmed the assessments. Mobility paid

the assessments under protest and sued for a refund in Hinds County Chancery Court. The

chancery court affirmed the Commission and granted summary judgment in favor of the

Department of Revenue because it excluded sales paid for by Medicare and Medicaid from

the sales tax, and, thus, Mobility’s argument that the tax was preempted by federal law was

moot.

¶6.     Mobility appealed to this Court, arguing that the chancellor erred by failing to address

whether the FEHBA preempts the state sales tax.

                                            ANALYSIS

¶7.     The sole question presented is whether the federal statute prohibiting any direct or

indirect state tax “on a carrier or an underwriting or plan administration subcontractor of an

approved health benefits plan” 3 preempts the tax on Mobility’s sales proceeds. Because the

tax does not directly or indirectly tax “a carrier or an underwriting or plan administration

subcontractor. . .with respect to any payment made from the Fund,” 4 the FEHBA does not

preempt the tax. Accordingly, we affirm the chancery court’s grant of summary judgment in

favor of the Department of Revenue.

¶8.     Mobility recognizes that the tax is not assessed to its customers’ insurance carriers,

but argues that the FEHBA precludes any state tax which may cause an increase in costs for

the fund. Mobility suggests that if the state charges a sales tax on its proceeds and it charges


        3
            5 U.S.C. § 8909(f)(1) (2006).
        4
            5 U.S.C. § 8909(f)(1) (2006).

                                               3
the tax on its sales of medical equipment, insurance carriers will pass the cost of the tax to

the fund. But nothing in the law requires Mobility to pass any costs to its customers, or to

the fund, so there is no conflict between state and federal law, and the tax is not preempted.

¶9.    The FEHBA states in its relevant part:

       No tax, fee, or other monetary payment may be imposed, directly or indirectly,
       on a carrier or an underwriting or plan administration subcontractor of an
       approved health benefits plan by any State, the District of Columbia, or the
       Commonwealth of Puerto Rico, or by any political subdivision or other
       governmental authority thereof, with respect to any payment made from the
       Fund.5

¶10.   Federal preemption of state law occurs where Congress explicitly preempts state law,

Congress has occupied the entire field, or there is an actual conflict between federal and state

law.6 Here, Congress has not explicitly preempted any tax on retailers, nor has it occupied

the entire field of taxation. Thus, the law creating the tax would be preempted only if it

actually conflicts with the FEHBA.

¶11.   We find that there is no conflict between the FEHBA and the law that requires

Mobility to pay a tax on their sales. Because Mobility is a retailer of medical equipment –

not “a carrier or an underwriting or plan administration subcontractor of an approved health

benefits plan” 7 – the state does not directly impose the tax on one of the prohibited entities.

And because the state does not require that the tax be charged to its customers or their

insurance carriers, or that it be reimbursed by the fund, the state does not indirectly tax a


       5
           5 U.S.C. § 8909(f)(1) (2006).
       6
      Sanders v. Advanced Neuromodulation Sys., Inc., 44 So. 3d 960, 965 (Miss. 2010) (citing
Harmon v. Regions Bank, 961 So. 2d 693, 697-98 (Miss. 2007)).
       7
           5 U.S.C. § 8909(f)(1) (2006).

                                               4
prohibited entity with respect to a payment from the fund. Therefore, state and federal law

do not conflict and the FEHBA does not preempt the tax.

¶12.   The State of Mississippi charges Mobility – not its customers – the tax. Mobility does

not contest this point, but argues instead that it must – and the dissent fears it might – pass

along the cost of its taxes to its customers, creating a trickle-down effect. Both Mobility and

the dissent call this an indirect tax.

¶13.   It is surprising to see the dissent conclude that the federal government has the power

to prevent the State of Mississippi from levying a fee or tax on a Mississippi business, simply

because that business might pass the tax or fee along to its customer who might seek

reimbursement for the tax from an insurance company whose policy might cover it.

¶14.   The dissent correctly observes that, as a matter of practice, most purveyors of

cheeseburgers tack the sales tax onto the price of the cheeseburger. But the dissent is not

correct in its understanding that tacking the sales tax onto the price is required, nor is the

dissent correct in its understanding that the consumer must pay a tacked-on sales tax that

cheeseburger vendors “are required to remit to the state.” Cheeseburger vendors are

perfectly free under Mississippi law to set the price of a cheeseburger at $4.00, and then

require their customers to pay exactly $4.00. It is the vendor – not the customer – who is

required by Mississippi law to pay the sales tax.

¶15.   Using the dissent’s logic, Mobility could argue it is exempt from paying inventory tax,

unemployment tax, property taxes, sales tax it pays on its own equipment, franchise tax,

license fees, and numerous other taxes and fees it must pay under state law, since it must take




                                              5
those taxes and fees into consideration when setting its prices, and must “indirectly” pass

them along to their customers.

¶16.   We decline to hold that federal law prevents the State of Mississippi from requiring

Mobility to pay a tax on the gross amount of its sales, simply because part of that tax might

be passed along to its customers who are covered by the FEHBA.

¶17.   It is also worth noting that – at least for now, and with some exceptions under the new

federal healthcare law – insurance carriers are free to insure whatever they like. Mobility

provides us with no authority that requires insurance companies to cover the sales tax added

to the purchase price of equipment. And even if Mobility charges a customer the tax, and the

customer’s insurance policy does cover sales tax – such that it reimburses Mobility’s

customer for the sales tax – Mobility provides us with no authority that requires, or even

allows, the insurance carrier to pass the sales tax cost to the fund.

¶18.   Other courts have come to a similar conclusion when addressing similar pass-through

cost arguments. The United States Court of Appeals for the Fourth Circuit rejected the

argument that a tax on healthcare providers can constitute an indirect tax on carriers based

on a pass-through principle.8 Likewise, the United States District Court for the District of

Connecticut upheld a sales tax on hospital earnings because there was no evidence that the

tax increased insurance reimbursement from the FEHBA fund.9

                                          CONCLUSION




       8
           United States v. West Virginia, 339 F.3d 212, 218 (4th Cir. 2003).
       9
           Connecticut v. United States, 1 F. Supp. 2d 147, 153 (D. Conn. 1998).

                                                  6
¶19.   FEHBA prohibits state taxation of transactions “with respect to any payment made

from the Fund.” 10 There is simply no factual basis on which to assume that Mississippi’s tax

on Mobility’s gross proceeds will require a payment of that tax from the FEHBA fund.

Therefore, state and federal law do not actually conflict, and the state sales tax is not

preempted. The chancery court’s grant of summary judgment in favor of the Mississippi

Department of Revenue is affirmed.

¶20.   AFFIRMED.

    RANDOLPH, P.J., LAMAR, CHANDLER AND COLEMAN, JJ., CONCUR.
KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., PIERCE AND KING, JJ.

       KITCHENS, JUSTICE, DISSENTING:

¶21.   The majority holds that, because Mobility is not an insurance carrier, the sales tax

imposed upon its proceeds is not preempted by the Federal Employees Health Benefits Act

(FEHBA). And, since nothing in the FEHBA specifically requires Mobility to pass costs to

the fund, then there is no conflict between the federal law and the state sales tax. In my view,

however, it is clear that some of the cost created by Mississippi’s sales tax on medical

equipment sold by Mobility inevitably will reach the fund. This is an eventuality that the

FEHBA was created to prevent. Therefore, I respectfully dissent.

¶22.   The FEHBA provides that “[n]o tax, fee, or other monetary payment may be imposed,

directly or indirectly, on a carrier or an underwriting or plan administration subcontractor .

. . with respect to any payment made from the Fund.” 5 U.S.C. § 8909(f)(1) (2006). The

Office of Personnel Management (OPM), which manages the fund, has determined that this

       10
            5 U.S.C. § 8909(f)(1) (2006).

                                               7
language should be interpreted broadly. 48 C.F.R. § 1631.205-41 (2011). The prohibition

applies to any tax, fee, or monetary payment directly or indirectly imposed on FEHBP

premiums. Id. The regulation provides that payments prohibited under the section include

“all payments directed by States or municipalities, regardless of how they may be titled, to

whom they must be paid, or the purpose for which they are collected . . . .” Id. This language

makes it abundantly clear that, although Mobility is not an insurance carrier, an underwriter,

or a plan administration subcontractor, the sales tax in question creates an expenditure that

will indirectly increase the costs of insurance carriers purchasing equipment from Mobility,

and ultimately will increase the amount of reimbursement from the fund. This is in direct

conflict with the purposes and provisions of the FEHBA.

¶23.   The majority goes further and argues that the tax is imposed on Mobility and not on

its customers. Therefore, the majority reasons, Mobility simply can pay the sales tax out of

its own pocket. Or, the insurance carrier can pay the sales tax and not ask for reimbursement

from the fund. Or, the insured can pay the sales tax. I disagree for several reasons. First,

forcing Mobility to remit the sales tax itself would discourage Mobility from selling medical

equipment to insureds covered under the FEHBA. It would cost Mobility more money to sell

to federal employees than to other customers. This runs counter to the clear intent of the

FEHBA, which is to provide economical health care solutions to federal employees. Further,

insurance companies will have no incentive to pay a sales tax for which they know they will

not be reimbursed. It is likely that the insured will have to foot the bill.

¶24.   Additionally, the majority says that Mobility is arguing “that the FEHBA precludes

any state tax which may cause an increase in costs for the fund.” Maj. Op. ¶8. However, the


                                               8
assessments at issue already have been paid under protest by Mobility. The chancery court

did not address whether any of the assessments ultimately were reimbursed from the fund.

It is entirely possible that the sales tax on the sale of certain medical equipment has been

reimbursed from the fund. But we do not know, because the chancery court did not make that

determination. I would remand to the chancery court for a determination of whether any of

the challenged assessments have been reimbursed from the fund.

¶25.   It is true, as the majority notes, that Mobility, the insurance carrier, or the insured can

pay the sales tax without seeking reimbursement from the fund. However, in the narrow

range of cases in which sales tax on durable medical equipment is paid for by insurance

carriers and actually is reimbursed by the fund, I believe the plain language of Section

8909(f) of the FEHBA and the OPM’s interpretation of the FEHBA clearly provide that

collection of the state sales tax has been preempted by federal law. The majority professes

that I conclude that preemption is appropriate where the tax might be passed along to the

fund. With respect, I conclude no such thing. What I do conclude is that, where the cost of

the sales tax on durable medical equipment sold to insureds under the FEHBA actually is

borne by the fund, then the sales tax is preempted by the supreme law of the land: federal

law. If a particular transaction is one in which the sales tax affects the fund, then

Mississippi’s sales tax is preempted. It should be simple enough to determine whether the

sales tax in question ultimately will be borne by the fund when a sale is made. If the sales tax

does not affect the fund, then Mississippi may collect it with impunity.

¶26.   The majority’s analogy that, under this logic, various other state taxes on Mobility are

the same kind of indirect taxes as the sales tax in question is simply incorrect. Sales taxes,


                                               9
by definition, always are indirect taxes on the consumer. When a Mississippian purchases

a cheeseburger, he or she pays more than the listed price because the consumer must pay the

sales tax that the cheeseburger vendor is required to remit to the state. Similarly, when an

insurer purchases medical equipment from Mobility, it pays more than the price of the

equipment because it is covering Mobility’s sales tax. This is an indirect tax on the insurance

carrier, since the carrier, in effect, is charged for the sales tax that Mobility is required to

remit to the state for that sale. The other kinds of taxes mentioned by the majority are in

nowise similarly indirect upon the insurance company purchasing the medical equipment.

If the additional sales tax payment ultimately is borne by the fund, then it is obvious that the

sales tax in that transaction is preempted by federal law. Any such tax that Mobility was

assessed which ultimately was borne by the fund should be refunded. This case should be

remanded to the chancery court to make that determination. Accordingly, I respectfully

dissent.

       WALLER, C.J., PIERCE AND KING, JJ., JOIN THIS OPINION.




                                              10
