             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Greenwood Gaming &                        :
Entertainment, Inc.,                      :
                   Petitioner             :
                                          :
       v.                                 : No. 531 F.R. 2017
                                          : ARGUED: April 10, 2019
Commonwealth of Pennsylvania,             :
                Respondent                :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE ROBERT SIMPSON, Judge1
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                         FILED: October 16, 2019

       Petitioner, Greenwood Gaming & Entertainment, Inc. (Greenwood), petitions
this Court for review of the Pennsylvania Board of Finance and Revenue’s denial of
a tax refund request.          The issue is one of statutory construction under the
Pennsylvania Race Horse Development and Gaming Act (Gaming Act). 2 After
thorough review, we reverse.




       1
        This matter was assigned to this panel before September 1, 2019, when Judge Simpson
assumed the status of senior judge.

       2
           4 Pa. C.S. §§ 1101 – 1904.
                                     I. Background
      Greenwood operates Parx Casino. Greenwood distributes complimentary
event tickets to patrons as a result of their table game and slot machine play. For
taxing purposes, the Commonwealth of Pennsylvania (Commonwealth) includes the
costs of those event tickets in Greenwood’s gross table game revenue and gross
terminal game revenue (jointly, gross table and slot revenues). Greenwood contends
it is entitled to deduct the costs of event tickets from its gross table and slot revenues,
and thus avoid paying taxes on the ticket costs.
      The Gaming Act defines “Gross table game revenue” as:
            Cash or cash equivalents received in the playing of a table game
      minus . . . [t]he actual cost paid by the certificate holder for any personal
      property distributed to a player as a result of playing a table game. This
      does not include travel expenses, food, refreshments, lodging or
      services.

4 Pa. C.S. § 1103, “Gross table game revenue” (1)(iii). Similarly, the Gaming Act
defines “Gross terminal revenue” as:

             Cash or cash equivalents received by a slot machine minus …
      [a]ny personal property distributed to a player as a result of playing a
      slot machine.     This does not include travel expenses, food,
      refreshments, lodging or services.

Id., “Gross terminal revenue” (1)(iii). Thus, a casino may deduct patrons’ winnings
from its gross table and slot revenues, but may not deduct “travel expenses, food,
refreshments, lodging or services” (commonly known as “comps”) it provides to
patrons as a result of their table game or slot machine play.
      Here, the dispute hinges on whether the event tickets Greenwood provides to
patrons are “services” under the Gaming Act. If they are “services,” their cost is
included in Greenwood’s gross table and slot revenues for tax purposes. If not, the
cost is deductible by Greenwood from its gross table and slot revenues.

                                            2
                                           II. Issue
       On review,3 Greenwood argues event tickets are not among the enumerated
comps which are excluded from deductible costs under the Gaming Act. The
Commonwealth counters that event tickets, when distributed to gaming patrons
based on their gaming play, constitute “services,” and as such, they are included in
gross table and slot revenues for tax purposes under the Gaming Act.
       The Commonwealth argues an event ticket merely confers a right of
admittance, and it is the event experience for which Greenwood pays and which its
patrons receive. The Commonwealth asserts that event performances are clearly
“services.” Therefore, Greenwood must include in its gross table and slot revenues
the cost of event tickets given to patrons, separate from their winnings, as a result of
their table game and slot machine play.
       Greenwood counters that neither the tickets nor the event admittances they
confer are “services” within the meaning of the Gaming Act. Greenwood argues
that at best, the meaning of “services” is ambiguous as applied to event tickets.
Therefore, under principles of statutory construction, Greenwood contends it may
properly deduct event ticket costs from its gross table and slot revenues.
                                       III. Discussion
       Pennsylvania’s rule of statutory construction provides, in pertinent part: “All
provisions of a statute of the classes hereafter enumerated shall be strictly construed:
. . . (3) Provisions imposing taxes . . . .” 1 Pa. C.S. § 1928(b)(3). Moreover, our
Supreme Court has specifically held that the definitions provided in the Gaming Act,


       3
        This Court’s review of a decision of the Pennsylvania Board of Finance and Revenue is
de novo and is based either on stipulated facts or a record created before the Court. Dechert LLP
v. Commonwealth, 922 A.2d 87 (Pa. Cmwlth. 2007). Here, the parties filed a stipulation of facts
dated September 12, 2018.


                                               3
4 Pa. C.S. § 1103, must be strictly construed in the taxpayer’s favor. Greenwood
Gaming and Entm’t, Inc. v. Pa. Dep’t of Revenue, 90 A.3d 699 (Pa. 2014).
      The Gaming Act does not define what constitutes a “service.” However,
pertinent authority suggests a ticket conferring a right of admission to an event is
intangible personal property, and as such, neither a good nor a service.
      In Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) (Yocca
II), Pittsburgh Steelers fans had an opportunity to buy “stadium builder licenses”
during construction of the team’s new stadium. Essentially, a license entitled the
purchaser to a future agreement to buy a season ticket for a specified seat every year
for the duration of the team’s use of the new stadium. When the seats were assigned
to licensees after completion of construction, however, they were not in locations as
favorable as suggested in the brochure advertising the licenses. License purchasers
sued under, inter alia, the Unfair Trade Practices and Consumer Protection Law
(UTPCPL),4 73 P.S. § 201-1 – 201-9.3.
      The trial court found the plaintiffs could not maintain their UTPCPL claim.
As provided in Section 9.2, the UTPCPL applies only to purchases of “goods or
services.” 73 P.S. § 201-9.2. According to the trial court, the licenses were neither
goods nor services.
      This Court disagreed and found the licenses were equivalent to option
agreements to keep open the purchasers’ rights to enter subsequent agreements to
buy season tickets. As such, this Court theorized that the licenses might conceivably
be “services” under the UTPCPL. Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d
936, 947 (Pa. Cmwlth. 2002) (Yocca I). However, in a dissenting opinion, Judge




      4
          Act of December 17, 1968, P.L. 1224, as amended.


                                              4
Cohn (now Judge Cohn Jubelirer), agreeing with the trial court, argued the licenses
were intangible property rights, and as such, were neither goods nor services. Id.
      On further appeal, our Supreme Court did not decide that issue, finding that
the plaintiffs failed to state an UTPCPL claim in any event. However, citing the trial
court and this Court’s majority and dissenting opinions, our Supreme Court
observed: “As is clear from the lower courts’ discussion and findings with respect
to this claim, the law is not completely settled as to whether [the license] constitutes
either a good or a service.” Yocca II, 854 A.2d at 438 (emphasis added).
      Here, the event tickets are analogous to the season tickets in Yocca I and II.
A license to enter into a future ticket purchase agreement is a step removed from the
ticket itself. However, the same analysis applies, as both the license and the ticket
convey intangible rights.
      The Commonwealth itself concedes, and in fact argues at length, that the event
tickets at issue represent and confer “intangible rights.” Resp.’s Br. at 14-21. The
Commonwealth correctly observes that an event ticket is a “general intangible”
under Article Nine of the Uniform Commercial Code (UCC). See 13 Pa. C.S. § 9-
102, “General intangible.” Resp.’s Br. at 17 (quoting Klingner v. Pocono Int’l
Raceway, Inc., 433 A.2d 1357, 1361-62 (Pa. Super. 1981) (ticket purchaser receives
a general intangible in the nature of a license to view a performance)). However,
nothing in the UCC definition includes a “service” in the definition of a “general
intangible.”5
      Relying on federal authorities, the Commonwealth also argues the events
themselves are services. However, the cited federal provisions are not tax laws. We

      5
          Under the UCC, a “[g]eneral intangible” is:




                                                5
are not persuaded that federal definitions of “services,” especially in non-tax
contexts, should carry over into Pennsylvania tax law. The Commonwealth cites no
Pennsylvania tax provision incorporating any federal definition of “services.”
       Moreover, even assuming events constitute services, Greenwood is not the
service provider; the performers provide the service at an event. The ticket merely
conveys the right of attendance – hence its definition as a general intangible.
       Admittedly, it seems logical that the legislature may have intended to except
only patrons’ winnings from gross table and slot revenues. Inasmuch as other comps
are not deductible from gross revenue, there is also some logical appeal to the
Commonwealth’s implicit argument that event tickets should be treated like other
comps and should be included in gross revenues.
       However, had the legislature intended to limit deductions from gross revenues
solely to patrons’ winnings, it could have done so expressly and thereby eliminated
deductions for all comps. Instead, it authorized deductions from gross table and slot


       [a]ny personal property, including things in action, other than accounts, chattel
       paper, commercial tort claims, deposit accounts, documents, goods, instruments,
       investment property, letter-of-credit rights, letters of credit, money and oil, gas or
       other minerals before extraction. The term includes payment intangibles and
       software.

13 Pa. C.S. § 9-102, “General intangible” (emphasis added.) Conversely, “[g]oods” are “things
that are movable when a security interest attaches.” Id., “Goods.” “Goods” expressly do not
include

       accounts, chattel paper, commercial tort claims, deposit accounts, documents,
       general intangibles, instruments, investment property, letter-of- credit rights, letters
       of credit, money or oil, gas or other minerals before extraction.

Id. (emphasis added.) While “general intangibles” and “goods” are mutually exclusive under the
UCC, neither definition includes, excludes, or otherwise mentions “services.” Therefore,
classifying an event ticket as a general intangible for tax law purposes based on the UCC definition
does not advance the Commonwealth’s argument that the ticket is a service.


                                                  6
revenues for all distributions to patrons (as winnings or otherwise) as a result of
playing table games and slot machines; then, it excepted from those deductions only
specific categories of comps.
      Finally, to the extent it is unclear under the current language of the Gaming
Act whether event tickets constitute “services” included in gross table and slot
revenues, the term “services” is ambiguous. Marshall v. Commonwealth, 197 A.3d
294 (Pa. Cmwlth. 2018). Because ambiguities in taxing statutes are construed in
favor of the taxpayer, 1 Pa. C.S. § 1928(b)(3), we find Greenwood is entitled to the
deductions it seeks for the comps it distributes to patrons in the form of event tickets,
unless or until the legislature revises and clarifies the pertinent provision of the
Gaming Act.
                                    IV. Conclusion
      Based on the foregoing discussion, we conclude event tickets do not constitute
“services” under the Gaming Act and are deductible from gross table and slot
revenues. Any necessary clarification must come from the legislature. We therefore
reverse the Pennsylvania Board of Finance and Revenue’s denial of Greenwood’s
tax refund request.




                                         __________________________________
                                         ELLEN CEISLER, Judge




                                           7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Greenwood Gaming &                     :
Entertainment, Inc.,                   :
                   Petitioner          :
                                       :
      v.                               : No. 531 F.R. 2017
                                       :
Commonwealth of Pennsylvania,          :
                Respondent             :


                                    ORDER


      AND NOW, this 16th day of October, 2019, the order of the Pennsylvania
Board of Finance and Revenue, denying the tax refund request of Greenwood
Gaming & Entertainment, Inc., is REVERSED. Unless exceptions are filed within
30 days pursuant to Pa. R.A.P. 1571(i), this order shall become final.



                                       __________________________________
                                       ELLEN CEISLER, Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Greenwood Gaming & Entertainment,              :
Inc.,                                          :
                     Petitioner                :
                                               :   No. 531 F.R. 2017
                       v.                      :   Argued: April 10, 2019
                                               :
Commonwealth of Pennsylvania,                  :
                     Respondent                :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge


DISSENTING OPINION
BY JUDGE SIMPSON                               FILED: October 16, 2019

               I respectfully dissent. To avoid an unreasonable result, I would affirm
the decision of the Board of Finance and Revenue (F&R), thereby denying
Greenwood Gaming & Entertainment, Inc.’s (Greenwood’s) 2014 tax year refund
pertaining to the cost of event tickets.


               In this case, we interpret part of the statutory language defining “Gross
Terminal Revenue” (GTR) and “Gross Table Game Revenue” (GTGR) for purposes
of calculating taxes, as defined in the Pennsylvania Race Horse Development and
Gaming Act (Gaming Act).1 As with any question of statutory interpretation, our

           1
               4 Pa. C.S. §§1101-1904. The Gaming Act defines these terms as follows:
‘Gross table game revenue.’ The total of:

(1) Cash or cash equivalents received in the playing of a table game minus
    the total of:

   (i) Cash or cash equivalents paid to players as a result of playing a
   table game.

   (ii) Cash or cash equivalents paid to purchase annuities to fund prizes
   payable to players over a period of time as a result of playing a table
   game.

   (iii) The actual cost paid by the certificate holder for any personal
   property distributed to a player as a result of playing a table game.
   This does not include travel expenses, food, refreshments, lodging or
   services.

(2) Contest or tournament fees or payments, including entry fees, buy-
    ins, re-buys and administrative fees, imposed by a certificate holder to
    participate in a table game contest or tournament, less cash paid or
    actual cost paid by a certificate holder for prizes awarded to the contest
    or tournament winners.

(3) The total amount of the rake collected by a certificate holder.

   The term does not include counterfeit cash or chips; coins or currency
   of other countries received in the playing of a table game, except to
   the extent that the coins or currency are readily convertible to cash; or
   cash taken in a fraudulent act perpetrated against a certificate holder
   for which the certificate holder is not reimbursed.

‘Gross terminal revenue.’ The total of:

(1) cash or cash equivalent wagers received by a slot machine minus the
    total of:

   (i) Cash or cash equivalents paid out to players as a result of playing
   a slot machine, whether paid manually or paid out by the slot machine.

   (ii) Cash or cash equivalents paid to purchase annuities to fund prizes
   payable to players over a period of time as a result of playing a slot
   machine.



                              RES - 2
standard of review is de novo, and our scope of review is plenary. Greenwood
Gaming & Entertainment, Inc. v. Dep’t of Revenue (DOR), 90 A.3d 699 (Pa. 2014)
(Greenwood v. DOR). In interpreting a statute, our primary goal is to ascertain and
effectuate the intention of the General Assembly. Id. at 710 (citing 1 Pa. C.S.
§1921). When the words of a statute are clear and free from all ambiguity, the letter
is not to be disregarded under the pretext of pursuing its spirit. Id. Additionally, we
construe every statute, if possible, to give effect to all of its provisions. Id.


              For the definitions of both GTR and GTGR, there is a personal property
distribution deduction, but that deduction is modified by the so-called “comp
exclusion,” which removes from the deduction the actual costs paid for “travel
expenses, food, refreshments, lodging or services.” 4 Pa. C.S. §1103.


              The personal property distribution subsections of the definitions of
GTR and GTGR do not expressly address treatment of tickets, tokens, passes, or


                 (iii) Any personal property distributed to a player as a result of
                 playing a slot machine. This does not include travel expenses, food,
                 refreshments, lodging or services.

              (2) cash received as entry fees for slot machine contests or slot machine
                  tournaments.

              The term does not include counterfeit cash or tokens; coins or currency of
              other countries received in slot machines, except to the extent that the
              coins or currency are readily convertible to cash; or cash taken in a
              fraudulent act perpetrated against a slot machine licensee for which the
              licensee is not reimbursed.


4 Pa. C.S. §1103 (emphasis added).



                                           RES - 3
vouchers. Such items have some value and constitute personal property on their
own, but their value and nature may be substantially linked to the ultimate object or
the underlying redeemable thing. In the absence of express treatment of tickets and
ticket-like distributions, and in the absence of a definition of “services” as used in
the “comp exclusion,” the personal property distribution deduction and the “comp
exclusion” are ambiguous.


             Given that ambiguity, the language should be interpreted strictly in
favor of Greenwood as the taxpayer. Greenwood v. DOR.


             “Of equal importance [however,] is the presumption that the General
Assembly does not intend a result that is absurd … or unreasonable [in construing
an ambiguous taxing statute].” Triumph Hosiery Mills, Inc. v. Com., 364 A.2d 919,
921 (Pa. 1976) (citing 1 Pa. C.S. §1922(1)) (emphasis added). I diverge from the
majority opinion to the extent it cites only the taxpayer-friendly strict interpretation
analysis, without reference to the equally important unreasonable result approach to
statutory construction of a taxing statute.


             The majority concludes that a ticket conferring a right of admission to
an event is intangible personal property, and as such, neither a good nor a service.
However, I am persuaded by the Commonwealth’s argument that the underlying
events are services according to the common and approved usage of that term. Thus,
“service” is commonly defined as “3. The act of doing something useful for a person
or company, usu. for a fee <your services were no longer required>. … 5. An




                                       RES - 4
intangible commodity in the form of human effort, such as labor, skill, or advice
<contract for services>.” Black’s Law Dictionary 1491 (9th ed. 2009).


              Tickets, tokens, passes and vouchers are personal property that have
similar characteristics.    Ticket-like items are small, easily transportable and
transferrable, and they represent permission to access certain areas, events, services
or other things. In the context of the present case, the primary value and utility of
the event tickets is permission to the holder to enter into an area, occupy a certain
place at a certain time, and view a skilled performance.


              However, the “comp exclusion” removes from the personal property
distribution deduction the actual cost paid for “travel expenses, food, refreshments,
lodging or services.”       4 Pa. C.S. §1103 (GTR)(1)(iii), (GTGR)(1)(iii); see
Greenwood v. DOR, 90 A.3d at 714. Clearly, a casino could not subtract from
taxable GTR and GTGR the value of certain “comps,” such as free drinks and
lodging. See Greenwood v. DOR, 90 A.3d at 714. This reflects a legislative policy
judgment that taxpayers should not foot these types of promotional expenses by
having them deducted from money otherwise taxable by the Commonwealth. See
id. at 716 (Castille, C.J., dissenting).


              Given that the costs of certain types of “comps” are not deductible when
supplied directly, there is no obvious reason why a casino should be able to deduct
the costs paid for the same purposes through the indirect operation of a pre-paid
ticket, token, pass or voucher. All these ticket-like distributions can facilitate the
provision of things carved out by the “comp exclusion.” In this regard, it is useful



                                           RES - 5
to observe that the “comp exclusion” does not expressly differentiate between the
direct and indirect provision of the excluded things.


             In light of the foregoing discussion, I would conclude that when tickets
or ticket-like distributions facilitate provision of things or services, the costs are not
deductible where the direct provision of the things or services would not be
deductible under the “comp exclusion.”             Any other conclusion would be
unreasonable. Triumph Hosiery Mills.


             Since the direct provision of “services” is removed by the “comp
exclusion” from the personal property distribution deduction, and the performance
at the ticketed events qualifies as a skilled “service” under the common and approved
usage of that term, I would hold that the cost of the event tickets here are not
deductible from taxable GTR and GTGR. Accordingly, I would affirm the order of
F&R, thereby denying Greenwood’s 2014 tax year refund request pertaining to the
cost of event tickets.




                                                ______________________________
                                                ROBERT SIMPSON, Judge


Judge Covey joins in the Dissenting Opinion.




                                        RES - 6
