
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00157-CV


Laredo Coca-Cola Bottling Co. and Coca-Cola Enterprises, Inc., Appellants

v.

Susan Combs, Comptroller of Public Accounts of the State of Texas; and Greg Abbott,
Attorney General of the State of Texas, Appellees




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-03-000575, HONORABLE RHONDA HURLEY, JUDGE PRESIDING


O P I N I O N

		This is a suit for a tax refund.  Appellants Laredo Coca-Cola Bottling Company
and Coca-Cola Enterprises, Inc. purchased soda fountain equipment and then provided the
equipment to businesses that used it to sell Coca-Cola drinks to customers.  Appellants sued
appellees Susan Combs, Comptroller of Public Accounts of the State of Texas, and Greg Abbott,
Attorney General of the State of Texas (collectively, the "Comptroller") to recover sales tax paid
on appellants' purchases of the equipment.  The district court granted the Comptroller's motion for
summary judgment and entered a take nothing judgment in favor of the Comptroller on all of
appellants' claims.  We hold that appellants' purchases are not exempt from sales tax under former
tax code section 151.318(g) (the manufacturing exemption), because appellants do not use the
equipment for manufacturing, or under tax code section 151.302 (the sale-for-resale exemption),
because appellants' provision of the equipment to businesses was not done or performed for
consideration as required by the tax code.  We affirm the judgment of the district court.
Factual and Procedural Background
		Appellants are distributors of Coca-Cola branded soft drinks.  Appellants purchase
concentrate from which they manufacture the finished drink to be placed in bottles or cans and then
sold.  Appellants also sell to retailers (such as bars and restaurants) the necessary elements for the
soft drink to be sold as a fountain product--both the canisters of syrup and carbon dioxide that the
fountain equipment mixes with water to produce the soft drink, and the cups, lids, and straws
with which an individual drink may be sold.  Some of these customers already possess the necessary
fountain equipment.  For those customers that do not, appellants provide the fountain equipment
under one of two types of agreements:  (1) a "lease" or "rental" agreement under which the customer
makes monthly payments for the use of the equipment; or (2) a "commitment agreement" under
which no payments are required, but the customer makes certain commitments.
		The latter type of agreement--under which appellants provide fountain equipment
free of charge--is at issue in this case.  Appellants use various form agreements to document this
type of agreement with their customers.  Generally, the agreements require the customer to purchase
a minimum amount of syrup, carbon dioxide, and cups from appellants, and to stock the equipment
only with appellants' products, to be distributed only in appellants' cups.  Both the equipment
and the cups display the Coca-Cola trademark logo.  The agreements provide that at all times,
each appellant is to remain the "exclusive owner" of the equipment.  The customer cannot remove
Coca-Cola's branding on the equipment, or move the equipment to a new location without
appellants' consent.  The customer agrees to assume liability for any damage or loss to the
equipment.  Appellants provide any necessary repairs, for which the customer agrees to pay, although
the customer usually is entitled to a number of free service calls.  Upon entering into an agreement,
appellants would deliver and install the equipment at the customer's location.  In the event that the
customer failed to purchase the minimum amount agreed to, appellants would either commence
charging monthly lease or rental payments or repossess the equipment, as authorized under the
agreements.  Appellants acknowledge that they do not recoup expenses associated with providing
the equipment by charging higher prices for the syrup, carbon dioxide, or cups, or charging an
amount for any other aspect of the transaction.
		The Comptroller denied appellants' refund claim for $750,632 in sales tax
paid--attributable to the period from January 1, 1990, through June 30, 1996--on their purchases
of fountain equipment from the manufacturer of that equipment.  See Tex. Tax Code Ann. § 111.104
(West 2008) (refund claims).  The Comptroller also denied the motions for rehearing subsequently
filed by appellants.  See id. § 111.105(c), (d) (West 2008) (motions for rehearing).
		On February 21, 2003, appellants filed suit in district court against the Comptroller,
challenging the denial of their refund claims.  See id. § 112.151 (West 2008) (suits for refund). 
Appellants rely on two tax exemptions:  (1) the manufacturing exemption, see generally id.
§ 151.318 (West 2008); and (2) the sale-for-resale exemption, see generally id. § 151.302
(West 2008). (1)  The parties filed competing motions for summary judgment.  On March 6, 2009,
the district court granted the Comptroller's motion for summary judgment, denied appellants'
motion for summary judgment, and entered a take nothing judgment in favor of the Comptroller on
all of appellants' claims.  Appellants appeal.
Standard of Review
		We review the district court's summary judgment de novo.  Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).  Under the "traditional" standard, a
summary judgment should be granted only when the movant establishes that there is no genuine
issue as to any material fact and that it is entitled to judgment as a matter of law.  See Tex. R. Civ.
P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). 
When, as here, both parties file motions for summary judgment and the court grants one and denies
the other, we must decide all questions presented and render the judgment that the trial court should
have rendered.  City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000).
		Statutory exemptions from taxation are strictly construed because "they undermine
equality and uniformity by placing a greater burden on some taxpaying businesses and individuals
rather than placing the burden on all taxpayers equally."  North Alamo Water Supply Corp. v. Willacy
County Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991).  Consequently, the burden of proof for
showing that the exemption applies is on the claimant.  See id.  The exemption must affirmatively
appear in the statutory language, and all doubts are resolved in favor of the taxing authority and
against the claimant.  See Bullock v. National Bancshares Corp., 584 S.W.2d 268, 272 (Tex. 1979). 
We also recognize that "the rule of strict construction cannot be used as an excuse to stray from
reasonableness."  Sharp v. Tyler Pipe Indus., Inc., 919 S.W.2d 157, 161 (Tex. App.--Austin 1996,
writ denied).
Manufacturing Exemption
		Appellants assert that some of their purchases of the fountain equipment are exempt
from sales tax under the manufacturing exemption.  During the audit period, section 151.318(g) of
the tax code provided as follows:
Each person engaged in manufacturing, processing, fabricating, or repairing tangible
personal property for ultimate sale is entitled to a refund or a reduction in the amount
of tax imposed by this chapter as provided by Subsection (h) for the purchase of
machinery, equipment, and replacement parts or accessories with a useful life in
excess of six months if the equipment is used or consumed in or during the actual
manufacturing, processing, fabrication, or repair of tangible personal property for
ultimate sale, and the use or consumption of the property is necessary or essential to
the manufacturing, processing, fabrication, or repair operation, or to a pollution
control process.
Act of May 8, 1989, 71st Leg., R.S., ch. 154, § 1, 1989 Tex. Gen. Laws 532, 533, repealed by Act of
May 31, 1999, 76th Leg., R.S., ch. 1467, § 4.01(3), 1999 Tex. Gen. Laws 4996, 5036.  Appellants
contend that this exemption applies to the fountain equipment because (1) the fountain equipment
is "used . . . in or during the actual manufacturing" of fountain drinks by appellants' customers for
ultimate sale, and (2) appellants are independently "engaged in manufacturing" by virtue of their
bottling and canning activities.
		The Comptroller contends that the manufacturing exemption does not apply to
appellants' purchase of the fountain equipment because appellants do not, themselves, use the
equipment for manufacturing.  The Comptroller has consistently maintained this interpretation.  See
Tex. Comptroller of Pub. Accounts, Hearing No. 29,774 (Oct. 12, 1994) ("The refund is available
only to persons engaged in manufacturing with respect to equipment used by that person in actual
manufacturing."); see also Tex. Comptroller of Pub. Accounts, Hearing No. 39,695 (Dec. 30, 2002)
(issue has been "conclusively decided"); Tex. Comptroller of Pub. Accounts, Hearing No. 31,922
(Dec. 19, 1996) (follows Hearing No. 29,774).
		"Construction of a statute by the administrative agency charged with its enforcement
is entitled to serious consideration, so long as the construction is reasonable and does not
contradict the plain language of the statute."  Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820,
823 (Tex. 1993).  It is a reasonable construction of former section 151.318(g) that its tax exemption
for items used in manufacturing applies only to the entity that, in fact, uses those items for
manufacturing.  Under appellants' interpretation, they would get the tax benefits of a customer's
activities based on the happenstance of unrelated manufacturing activities that have nothing to do
with the equipment at issue.  Such a result runs contrary to the requirement that exemptions
from taxation be strictly construed.  See North Alamo Water Supply Corp., 804 S.W.2d at 899.  It
is a reasonable interpretation of the manufacturing exemption, then, that it applies to purchases by
the entity that actually uses the purchased equipment for manufacturing.
		We hold that former section 151.318(g) of the tax code (the manufacturing
exemption) does not exempt from taxation appellants' purchases of the fountain equipment at issue
because the equipment is not used by appellants in manufacturing, processing, fabricating, or
repairing tangible personal property.
Sale-for-Resale Exemption
		Appellants also assert that some of their purchases of the fountain equipment
are exempt from sales tax under the sale-for-resale exemption.  A "sale for resale of a taxable item"
is exempt from sales tax.  See Tex. Tax Code Ann. § 151.302(a).  Appellants rely on the following
statutory definition of "sale for resale":
"Sale for resale" means a sale of . . . tangible personal property . . . to a purchaser
who acquires the property . . . for the purpose of reselling it in the United States of
America . . . in the normal course of business in the form or condition in which it is
acquired or as an attachment to or integral part of other tangible personal
property . . . .
Id. § 151.006(a)(1) (West 2008).
		The Comptroller contends that appellants' provision of the relevant
fountain equipment to their customers does not qualify as a "sale" and, therefore, appellants'
acquisition of the equipment is not "for the purpose of reselling it."  To be a "sale" for purposes
of the sale-for-resale exemption, the resale must--among other requirements--be "done or
performed for consideration."  See id. § 151.005 (West 2008).  Therefore, if appellants' transferring
of fountain equipment to their customers was done for no consideration, the sale-for-resale
exemption does not apply to appellants' purchase of that equipment. (2)
		Consideration can be either a benefit to the promisor or a loss or detriment to the
promisee, and surrendering a legal right represents valid consideration.  Northern Natural Gas Co.
v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998).  Moreover, it is not necessary that consideration
be pecuniary.  See Angelou v. African Overseas Union, 33 S.W.3d 269, 280 (Tex. App.--Houston
[14th Dist.] 2000, no pet.).  Appellants rely on three characteristics of their agreements with their
customers to argue that the transfer of the equipment is done or performed for consideration.
		First, appellants refer to the requirement that the customer use only the
products purchased from appellants--syrup, carbon dioxide, and cups--in connection with the
fountain equipment.  However, we decline to consider this requirement to be a legal detriment to
the customer or a surrender of a legal right because the agreements do not, in fact, prohibit the
customer's sale of any products not provided by appellants.  The requirement only restricts what
product can be used in connection with the equipment itself.
		Next, appellants point to the requirement that the customer purchase a minimum
amount of syrup, carbon dioxide, and cups from appellants.  This requirement exists, under the
applicable agreements, as the alternative to the customer's obligation to make lease or rental
payments.  Appellants admit, however, that they did not charge any premium on those products
for customers who receive the equipment absent any payment obligation.  See Bullock v. Cordovan
Corp., 697 S.W.2d 432, 435-36 (Tex. App.--Austin 1985, writ ref'd n.r.e.) (finding consideration
for freely distributed magazines due to advertisers' payment to claimant of "additional
amount to have the magazines distributed to a certain group"); Tex. Comptroller of Pub. Accounts,
Hearing No. 30,151 (Dec. 30, 1993) (finding consideration for free transfer of ovens because
transferor received discount on services provided by transferee when using transferred ovens). 
During the time period in which the customer satisfies the minimum requirement, the only amounts
paid to appellants are the amounts paid for the syrup, carbon dioxide, and cups sold, which amounts
would be the same for a customer who paid for the equipment under a lease or rental agreement and
made the exact same product sales.  In the event the customer does not meet its required minimum
purchase for the applicable time period, appellants acknowledge that their only response is either to
repossess the equipment or to commence assessing lease or rental payments on a prospective basis. 
Thus, there is no evidence that a customer who fails to purchase the required minimum will be
required to pay the amount by which the actual purchases fell below the minimum requirement.  To
the extent the minimum requirement in this case is actually a detriment to the customer, then, such
a detriment relates only to the fountain products themselves, not the equipment. (3)
		The other contractual provision on which appellants rely is the customer's agreement
to assume liability for any damage or loss to the equipment while in the customer's possession. 
Regardless whether such an assumption of liability might constitute consideration as a general
matter, we decline to hold that, in these circumstances, it constitutes consideration of a type such as
would demonstrate a "resale" under tax code section 151.006(a)(1).  The agreement by appellants'
customer to pay for any damage or loss to the equipment in its possession results in, at most, the
mere possibility of a required payment.  Moreover, there is no evidence in the record that appellants
have ever enforced this contractual provision. (4)  Therefore, there is no evidence that such contractual
requirement is, in fact, a detriment to the customer such that appellants' provision of the equipment
to their customers--and not appellants' original purchase from the manufacturer--is the transaction
that should be subject to sales tax.  See National Bancshares Corp., 584 S.W.2d at 272 (for tax
exemptions, all doubts resolved in favor of taxing authority and against claimant); DuPont
Photomasks, Inc. v. Strayhorn, 219 S.W.3d 414, 419 (Tex. App.--Austin 2006, pet. denied) ("The
purpose of the sale-for-resale exemption is to prevent double taxation."); cf. G & J Pepsi Cola
Bottling, Inc. v. Limbach, 548 N.E.2d 936, 939 (Ohio 1990) (finding assumption of liability for
damage or loss to equipment to be consideration, under Ohio law, where record demonstrated
retailers were charged for "damages to equipment caused by a car being driven into a machine and
for damages to equipment caused by fire").
		We hold that the transactions at issue--involving appellants' providing
fountain equipment to customers free of charge as long as those customers otherwise meet minimum
purchase requirements of sort drink products--is not a "sale" as contemplated by the "sale-for-resale" exemption of the tax code.  Therefore, section 151.302(a) of the tax code (the sale-for-resale
exemption) does not exempt from taxation appellants' purchases of the equipment.
Conclusion
		Based on the summary judgment record, appellants' purchases of fountain equipment
are not exempt from sales tax under former tax code section 151.318(g) (the manufacturing
exemption) or tax code section 151.302 (the sale-for-resale exemption).  We affirm the judgment of
the district court.


						__________________________________________
						G. Alan Waldrop, Justice
Before Chief Justice Jones, Justices Pemberton and Waldrop
Affirmed
Filed:   April 15, 2010
1.   Appellant Laredo Coca-Cola Bottling Company seeks a refund of $29,321 plus interest for
the audit period May 1, 1993, through June 30, 1996, and relies exclusively on the manufacturing
exemption.  Appellant Coca-Cola Enterprises, Inc. is the successor in interest to Coca-Cola Bottling
Company of Texarkana and Austin Coca-Cola Bottling Company.  Coca-Cola Bottling Company
of Texarkana sought a refund of $6,725 plus interest for the audit period October 1, 1991,
through June 30, 1996, and relied exclusively on the manufacturing exemption.  Austin Coca-Cola
Bottling Company sought a refund of $193,770 plus interest for the audit period January 1, 1990,
through December 31, 1992, based solely on the sale-for-resale exemption, and sought a refund of
$520,816 plus interest for the audit period July 1, 1991, through June 30, 1996, based on both the
manufacturing exemption and the sale-for-resale exemption.
2.   Appellants contend that the party asserting lack of consideration has the burden of proof. 
However, the cases appellants cite involve a dispute between the parties to the alleged contract with
regard to the validity of the contract in general, not a party to the contract seeking a tax exemption
relating to a component of the contract.  See ABB Kraftwerke Aktiengesellschaft v. Brownsville
Barge & Crane, Inc., 115 S.W.3d 287, 293 (Tex. App.--Corpus Christi 2003, pet. denied);
Rodriguez v. Southwestern Drug Corp., 619 S.W.2d 469, 472 (Tex. Civ. App.--Houston [14th Dist.]
1981, no writ).  The burden of proof in a typical contract case does not alter the burden of proof
where a claimant is seeking to come within an exemption to taxation.
3.   Appellants cite Northern Natural Gas Co. v. Conoco, Inc., in which the supreme court
held that the defendant's "promise to deliver for processing all gas that [the defendant] receives
under the gas purchase contracts is the surrender of a legal right and therefore is sufficient
consideration."  986 S.W.2d 603, 607 (Tex. 1998).  However, in this case, the issue is not whether
appellants' agreements, as a general matter, are supported by consideration.  The issue is whether
the transfer of the equipment itself is supported by consideration.  Northern Natural Gas Co. does
not alter our conclusion that it is not.
4.   In some cases, the applicable agreement required the customer to obtain insurance against
damage or loss to the fountain equipment.  However, Steven McMahan, appellants' designated
corporate representative, admitted in his deposition that appellants did not obtain verification of
insurance.  Moreover, appellants provided no evidence regarding whether such a provision required
the customer to purchase insurance in addition to its preexisting coverage.
