Pennsylvania
Oh, La La! Pennsylvania Court Rules Perrier Is A Soft Drink—And Taxable
Perrier water
getty
Sales tax on food and beverages can be complicated. While five states do not have a sales tax (Alaska, Delaware, Montana, New Hampshire, and Oregon), the rules in states that do impose a sales tax can vary. Sometimes, all it takes is an add-on or leaving the premises to cause an item to go from nontaxable to taxable (and vice versa). In a recent Pennsylvania sales tax case, the question came down to carbonation.
Facts
On June 1, 2019, Jennifer Montgomery purchased a single 16-ounce bottle of Perrier from Sheetz.
(For the uninitiated, Sheetz is a chain of convenience stores—most of which also sell gas—owned by the Sheetz family. What started as a one-store operation in western Pennsylvania in the 1950s is now a 700+ store enterprise in several states. Importantly, as a resident of eastern Pennsylvania, it’s incumbent upon me to mention that, for decades, a Sheetz vs. Wawa debate has raged in the Keystone State. That question wasn’t resolved in this court action but has been resolved for many in the court of public opinion.)
On June 14, 2019, Montgomery purchased another bottle of Perrier from Sheetz. Sheetz collected and remitted a total of 24 cents in sales tax each time. Afterward, Montgomery filed refund petitions with the Pennsylvania Department of Revenue Board of Appeals (Department) seeking a refund of sales tax based upon her belief that Perrier is natural mineral water and not subject to sales tax in the Commonwealth.
(Montgomery also initiated a class action complaint against Sheetz in the Court of Common Pleas of Allegheny County, alleging the same. The class action was stayed pending the Department’s decision.)
On October 31, 2019, the Department issued a decision and order denying Montgomery’s refund petitions. The Department concluded that Perrier is carbonated water and subject to sales tax.
Montgomery appealed the decision to the Board, which affirmed the denial of the refund petitions on a different basis.
Law & Guidance
Under Pennsylvania tax law, a six percent sales tax is imposed at retail of tangible personal property.
The tax law also excludes “the sale at retail or use of water” (as a public policy note, water is considered a necessity). The exclusion does not apply to soft drinks. Soft drinks are defined as “[a]ll nonalcoholic beverages, whether carbonated or not, such as soda water, ginger ale, coca cola, lime cola, Pepsi cola, Dr. Pepper, fruit juice when plain or carbonated water, flavoring or syrup is added, carbonated water, orangeade, lemonade, root beer or any and all preparations, commonly referred to as ‘soft drinks.’”
The Department also issues informal guidance, such as statements of policy. One of those statements focused on the taxation on the sale and preparation of food and beverages provides that a soft drink is a “nonalcoholic beverage, in either powder or liquid form, whether or not carbonated, such as soda water, ginger ale, colas, root beer, flavored water, artificially carbonated water, orangeade, lemonade, juice drinks containing less than 25% by volume of natural fruit or vegetable juices, and similar drinks. The term does not include fruit and vegetable juices containing at least 25% by volume of natural fruit or vegetable juice. The term does not include coffee, coffee substitutes, tea, cocoa and milk or non-carbonated drinks made from milk derivatives.”
The guidance also makes clear that soft drinks are subject to sales tax.
Montgomery’s Argument
Montgomery argued that Perrier is excluded from sales tax because it is natural mineral water. She claimed that other guidance, including the statement of policy, is unambiguous that water, including natural mineral water, is not subject to sales tax. She argues that “there is no dispute that Perrier is a sparkling natural mineral water.”
She also claimed that the Department’s informal guidance clarifies that all non-flavored mineral water is exempt from tax and does not distinguish between carbonated and non-carbonated mineral water. She claims that it is well settled that the exclusionary provision must be construed against the Commonwealth and in favor of the taxpayer. That would mean, she argued, that Perrier is sparkling natural mineral water, not carbonated water, and is excluded from sales tax.
Montgomery also argued that Perrier does not qualify for sales tax as a soft drink because it is not artificially carbonated. Noting that the definition in the statement of policy includes “artificially carbonated water,” Montgomery urged the Court to conclude that Perrier contains natural carbonation and is exempt from tax.
Commonwealth’s Arguments
The Commonwealth argued that Perrier is not exempt from tax as water, but is carbonated water. That means, they said, that it falls squarely within the definition of soft drink and is subject to sales tax.
The term “carbonate” means “to combine or infuse with carbon dioxide.” The Commonwealth maintained that Perrier is carbonated water because it is manufactured by combining a specific amount of filtered or scrubbed carbonic gas with still water in an industrial plant setting. The Commonwealth further argued that the process used to carbonate Perrier is the same process used to carbonate Coca-Cola
Coca-Cola
Finally, the Commonwealth alleged that because Montgomery didn’t have statutory support for her argument, she improperly relied on the statement of policy and other sources—none of which, they claim, supports a finding that Perrier is exempt from tax. The statutory language makes no qualifications for naturally or artificially carbonated water. Instead, the tax laws simply provide that carbonated water, whether naturally or artificially carbonated, is subject to sales tax. That means, the Commonwealth says, even if the Court concludes that Perrier is “naturally carbonated water,” it is still not exempt under the plain language of the law.
Discussion
Judge Wolf says the arguments “bubble down to one question”—whether Perrier is water and exempt from sales tax.
The Court agrees that the tax law unambiguously exempts the sale at retail of water from sales tax. However, the Court disagreed that Perrier qualifies as water.
The Court then offered a science—and geography lesson—of its own, finding:
- Perrier is sourced from non-flavored mineral water.
- Perrier comes from underground natural springs near the village of Vergeze in Provence, France.
- The water in the natural springs from which Perrier is collected is naturally carbonated.
- Perrier’s carbonic gas and water are independently harvested from different depths within the same geologic formation.
- The carbonic gas and water in Perrier, collected from natural springs, are combined at the bottling plant.
- Before the combination, the water in Perrier is chilled, all of the air is removed (a process called deaeration,) and any carbonation is stripped out.
- Before carbonation, filters or scrubbers remove natural elements and impurities in the carbonic gas and ensure a consistent carbonation level.
- Similarly, before the combination, impurities are removed from the water.
- The water then goes through one of two processes—either a carbonated tank or an in-line carbonation process—where carbonic gas is added to the water and the carbonation levels are adjusted to reach the desired amount for the product.
- The processes used are the same as those for making soft drinks like Coca-Cola and Pepsi. There is no alternative process for carbonating beverages.
- Following these processes, the product is bottled for sale.
VERGEZE, FRANCE – OCTOBER 27: Perrier bottles move down the automated bottling line at the Perrier factory October 27, 2004 in Vergeze, France. (Photo by Gilles Mingasson/Getty Images)
Getty Images
The Court found that when a consumer purchases a bottle of Perrier, the non-flavored mineral water has carbonation.
A finding that mineral water with carbonation is not carbonated water “flies directly in the face of the plain language of the Code,” which treats water and carbonated water differently for sales tax purposes. Perrier, they ruled, is carbonated water as a matter of law and is subject to sales tax as a soft drink.
The Court also rejects Montgomery’s argument that only artificially carbonated water may be taxed as a soft drink. The definition of soft drink in the Code does not contain any natural or artificial qualifications, so Judge Wolf wrote that the argument “does not hold water in the face of the clear and unambiguous statutory language.”
Conclusion
This sort of analysis is often necessary to parse complicated sales tax laws. The taxability (or not) can often turn on something as simple as it did here: bubbles.
In this case, the Court concluded that Perrier is carbonated water and subject to sales taxation as a soft drink. So, drink up, Pennsylvania—just be prepared to pay tax if you’re craving a Perrier.
(Don’t you feel smarter already?)
The case is Jennifer Montgomery v. Commonwealth of Pennsylvania (No. 336 F.R. 2020).
Pennsylvania
Josh Shapiro to run for second term as Pennsylvania governor, trailed by talk of a 2028 White House bid – The Boston Globe
Ever since he won the governor’s office in a near-landslide victory in 2022, Shapiro has been mentioned alongside Democratic contemporaries like California Gov. Gavin Newsom, Illinois Gov. JB Pritzker, Maryland Gov. Wes Moore and others as someone who could lead a national ticket.
Shapiro, 52, has already made rounds outside Pennsylvania. Last year, he campaigned for Democrats running for governor in New Jersey and Virginia, and he’s a frequent guest on Sunday talk shows that can shape the country’s political conversation.
He was also considered as a potential running mate for Kamala Harris in 2024. She chose Minnesota Gov. Tim Walz instead.
A pivotal first term as governor
Shapiro’s first-term repeatedly put him in the spotlight.
He was governor when Pennsylvania was the site of the first attempted assassination of President Donald Trump; the capture of Luigi Mangione for allegedly killing United Healthcare chief executive Brian Thompson; and the murder of three police officers in the state’s deadliest day for law enforcement since 2009.
Last year, an arsonist tried to kill Shapiro by setting the governor’s official residence on fire in the middle of the night. Shapiro had to flee with his wife, children and members of his extended family, and the attack made him a sought-out voice on the nation’s recent spate of political violence.
As Shapiro settled into the governor’s office, he shed his buttoned-down public demeanor and became more plain-spoken.
He pushed to quickly reopen a collapsed section of Interstate 95 in Philadelphia, debuting his new and profane governing slogan — “get s—- done” — at a ceremony for the completed project.
He crossed the partisan divide over school choice to support a Republican-backed voucher program, causing friction with Democratic lawmakers and allies in the state.
Shapiro regularly plays up the need for bipartisanship in a state with a politically divided Legislature, and positioned himself as a moderate on energy issues in a state that produces the most natural gas after Texas.
He’s rubbed elbows with corporate executives who are interested in Pennsylvania as a data center destination and thrust Pennsylvania into competition for billions of dollars being spent on manufacturing and artificial intelligence infrastructure.
A repeat winner in competitive territory
Shapiro has enjoyed robust public approval ratings and carries a reputation as a disciplined messenger and powerhouse fundraiser.
He served two terms as state attorney general before getting elected governor, although his 2022 victory wasn’t the strongest test of his political viability. His opponent was state Sen. Doug Mastriano, whose right-wing politics alienated some Republican voters and left him politically isolated from the party’s leadership and donor base.
For 2026, Pennsylvania’s Republican Party endorsed Stacy Garrity, the twice-elected state treasurer, to challenge Shapiro.
Garrity has campaigned around Pennsylvania and spoken at numerous Trump rallies in the battleground state, but she is untested as a fundraiser and will have to contend with her relatively low profile as compared to Shapiro.
Shapiro, meanwhile, keeps a busy public schedule, and has gone out of his way to appear at high-profile, non-political events like football games, a NASCAR race and onstage at a Roots concert in Philadelphia.
He is a regular on TV political shows, podcasts and local sports radio shows, and he keeps a social media staff that gives him a presence on TikTok and other platforms popular with Gen Z. He even went on Ted Nugent’s podcast, a rocker known for his hard-right political views and support for Trump.
Shapiro also became a leading pro-Israel voice among Democrats and Jewish politicians amid the Israel-Hamas war. He confronted divisions within the Democratic Party over the war, criticized what he describes as antisemitism amid pro-Palestinian demonstrations, and expressed solidarity with Israel in its drive to eliminate Hamas.
In 2024, some activists argued against him being the party’s nominee for vice president. Harris, in her recent book, wrote that she passed on Shapiro after determining that he wouldn’t be a good fit for the role.
Shapiro, she wrote, “mused that he would want to be in the room for every decision,” and she “had a nagging concern that he would be unable to settle for a role as number two and that it would wear on our partnership.” Shapiro disputed the characterization, telling The Atlantic that Harris’ accounts were ”blatant lies” and later, on MS NOW, said it “simply wasn’t true.”
An audition on 2026’s campaign trail
In a September appearance on NBC News’ “Meet the Press,” the host, Kristen Welker, asked him whether he’d commit to serving a full second term as governor and whether he’d rule out running for president in 2028.
“I’m focused on doing my work here,” he said in sidestepping the questions.
His supposed White House aspirations — which he’s never actually admitted to in public — are also mentioned frequently by Garrity.
“We need somebody that is more interested in Pennsylvania and not on Pennsylvania Avenue,” Garrity said on a radio show in Philadelphia.
For his part, Shapiro criticizes Garrity as too eager to get Trump’s endorsement to be an effective advocate for Pennsylvania.
In any case, the campaign trail could afford Shapiro an opportunity to audition for a White House run.
For one thing, Shapiro has been unafraid to criticize Trump, even in a swing state won by Trump in 2024. As governor, Shapiro has joined or filed more than a dozen lawsuits against Trump’s administration, primarily for holding up funding to states.
He has lambasted Trump’s tariffs as “reckless” and “dangerous,” Trump’s threats to revoke TV broadcast licenses as an “attempt to stifle dissent” and Trump’s equivocation on political violence as failing the “leadership test” and “making everyone less safe.”
In a recent news conference he attacked Vice President JD Vance — a potential Republican nominee in 2028 — over the White House’s efforts to stop emergency food aid to states amid the federal government’s shutdown.
Many of Shapiro’s would-be competitors in a Democratic primary won’t have to run for office before then.
Newsom is term-limited, for instance. Others — like ex-Transportation Secretary Pete Buttigieg — aren’t in public office. A couple other governors in the 2028 conversation — Moore and Pritzker — are running for reelection this year.
Pennsylvania
1 killed in crash involving horse and buggy in Lancaster County, Pennsylvania State Police say
One person was killed in a two-vehicle crash involving a horse and buggy in Lancaster County on Wednesday afternoon, according to Pennsylvania State Police.
The crash happened around 1:30 p.m. Wednesday in the 4000 block of Strasburg Road in Salisbury Township, state police said.
One person was pronounced dead at the scene, according to state police.
Strasburg Road, or Rt. 741, near Hoover Road, is closed in both directions, PennDOT says.
PSP said the Lancaster Patrol Unit, Troop J Forensic Services Unit and Troop J Collision Analysis and Reconstruction Specialists Unit are on scene investigating the crash.
Pennsylvania
Police hunt for masked suspects who looted a Pennsylvania Lululemon overnight
Pennsylvania police are searching for at least two masked suspects believed to have looted a Lululemon store overnight.
At least two masked men broke into a Lululemon in Ardmore, Pennsylvania, around 2 a.m. Tuesday, police told NBC 10 Philadelphia. Ardmore, a suburb of Philadelphia, is home to about 14,000 people.
The suspected thieves used a sledgehammer to break the glass on the store’s front door, according to police.
Once they gained access, the masked individuals grabbed handfuls of merchandise, security footage shows. The men went in and out of the store several times, grabbing handfuls of items that included coats, vests and shirts from the men’s section, police told local outlet WPVI.
“This is taking it to another level,” Lower Merion Police Superintendent Andy Block told WPVI.
The suspects then loaded the merchandise into a U-Haul truck. Their truck was last seen at the intersection of Bryn Mawr Avenue and Woodbine Avenue, just a few miles from the store, police said.
The entire incident lasted about five minutes, which Block said is longer than usual for this type of burglary.
“Usually, it is because in a smash-and-grab situation they want to get in and get out before they’re identified or anybody’s notified on it,” Block told CBS Philadelphia.
Block told WPVI the store is a popular target for robbers, given that many of its items cost more than $100. Now, he expects the alleged thieves have sold or exchanged the items.
“They’re using it on the market, maybe they’re exchanging it for drugs, or they’re selling it on the black market. It’s a highly sought-after item,” he told WPVI.
Even though police say Lululemon is a popular target, Lt. Michael Keenan of the Lower Merion Police Department still called the incident “out of character.”
“This is an out of character, out of type incident where we don’t normally see people smashing windows in the middle of the night. But, certainly this is something that is distinct,” Keenan told NBC 10 Philadelphia.
The store still opened Tuesday, with a banner covering the smashed glass on the door, according to Fox 29. Gina Picciano, a general manager at a restaurant across the street, said it was a frightening incident.
“I walked out here with my bartender and we looked, and it’s scary that it’s happening right across the way from us,” Picciano told Fox 29.
The same store was previously robbed in May 2024. Thieves stole more than $10,000 worth of merchandise during that incident, NBC 10 Philadelphia reports.
The Independent has contacted the Lower Merion Police Department and Lululemon for comment.
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