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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).
HARRISBURG, Pa. (WHTM) — A Luzerne County legislator introduced a bill this week intended to allow local governments to place a moratorium on data center applications.
Rep. Jamie Walsh (R-Luzerne) introduced House Bill 2533 on Wednesday.
“Our municipalities, which decide local land use policies, have struggled to understand the myriad environmental and community impacts of this new industry and to review and revise their zoning ordinances to keep up with the influx of interest from data center developers,” Walsh said in a co-sponsorship memorandum. “I am therefore proposing to give municipalities the option of placing a moratorium on data center applications so that, if they choose, they can revise their ordinances and establish conditional use policies addressing issues like power supply, water consumption, noise and setbacks which they determine protect the community’s interest.”
It is a companion bill, he said, to Senator Jarrett Coleman (R-Bucks/Lehigh)’s Senate Bill 1345.
They both would allow an 18-month moratorium on both unapproved and new data center applications.
The two legislators also introduced legislation they say would repeal the state Computer Data Center Equipment Exemption program enacted in 2021, which the legislators say incentivizes data centers to locate in Pennsylvania by exempting computer data center equipment from the Sales and Use Tax when it is sold to, used or consumed in a certified data center by an owner, operator or qualified tenant. This is in the form of House Bill 2532 and Senate Bill 1344 respectively.
“While we all appreciate the technological advances that are driving the development of new data centers, I am certain most Pennsylvanians want a more thoughtful approach to where and under what requirements they can operate and don’t want to subsidize them with tax incentives,” said Coleman. “The bills Rep. Walsh and I partnered on will do just that.”
Data centers have been a hot topic issue across Pennsylvania as communities have rallied to oppose developments, including in Columbia and in the Annville area.
Court records show a man is facing numerous charges after local news outlets reported he was accused of partially demolishing his Pennsylvania home with members of his family still inside.
Erik Pierwsza, 48, is charged with three counts of recklessly endangering another person and one count each of causing a catastrophe and disorderly conduct, according to court documents reviewed by USA TODAY.
According to local media outlet WTAE, Pierwsza allegedly destroyed a portion of his home with an excavator, while his wife and two children were inside. Pierwsza is a resident of Buffalo Township, roughly 30 miles northeast of Pittsburgh.
The Buffalo Township Police Department did not immediately return USA TODAY’s request for more information. Court records did not list representation for Pierwsza and noted that he is not currently represented by a public defender.
According to a criminal complaint reported on by WTAE and WPXI, Pierswza had allegedly got into an argument, at which point Pierswza threatened to tear down the house.
He then allegedly climbed into the excavator and began demolishing the home, per the outlets.
According to WPXI, no one was injured.
Pierwsza is being held at Butler County Prison on $10,000 bond, per court documents.
Drew Pittock covers national trending news for USA TODAY. He can be reached at DPittock@usatodayco.com.
Pennsylvania
Cheers to summer: Try these Western Pennsylvania beers that pair perfectly with warm weather
As the temperature and the sun stay high, decks and patios all over the region are finally getting some use. Casual backyard hangouts and late nights lit with overhead string lights will become more common, especially as Memorial Day approaches. And nothing pairs with an outdoor gathering on a warm night like a cold, refreshing beer.
Switching out the cans or bottles in your beer fridge from colder-weather offerings, such as stouts or porters, can be an intimidating endeavor. Fortunately, Southwestern Pennsylvania is blessed with a plethora of creative and talented local beer makers brewing up the perfect libations to pair with a summer night.
We spoke to some local breweries about their best beers for the upcoming hot weather season — and there’s something for every palate out there, from refreshing lagers to hop-heavy IPAs to hard seltzers and even non-alcoholic options. Here are a few beverages to bring to your next barbecue.
Lagers
That can seem like a pretty general heading — after all, “lager” is one of two giant umbrellas under which most beer styles fit (the other being “ale”). Almost any mass-market beer that you’ll buy is a lager; it’s become the dominant beer style in the United States.
But that doesn’t mean they’re easy to make.
“Lagers are tricky to brew, especially at a craft level, because there’s nothing to hide behind. If that beer’s slightly off, that’s all you’re going to notice,” said Ian Staab, owner and founder of Yellow Bridge Brewing.
The brewery has been going for nearly a decade, starting in Delmont. It now has a second location in Greensburg and has expanded into food as well, focusing on pizza.
It also has a few lagers on its tap list, including an Italian dry-hopped pilsner called YB Italian Pilsner.
“We’ve also got a New Zealand dry-hopped pilsner, with hops from New Zealand that are very kind of lemony-limey-citrus. You have a nice crisp pilsner base with some additional hop notes on the aroma front,” Staab said.
At Cinderlands Beer Company in the Strip District, Lawrenceville and Wexford, a summer lineup of beers called the “Easy Course” has been introduced. Featured in the line is Amber, a toasty, smooth amber lager that Cinderlands’ marketing manager Mel Larrick described as “crushable.”
“It’s slightly malty, but still really crisp — really goes down easy and smooth,” Larrick said.
In a few weeks, All Saints Brewing Co. in Greensburg will release its Greensburg Lager, as well as a pilsner.
But if you’re looking for something with a higher alcohol content while still sitting in the accessible lager zone, All Saints’ limey Revelation is the brew for you.
“It’s really neat, but it goes down way too easily,” said Jeff Guidos, brewer and owner of All Saints Brewing Co. “It’s like a little over 9 percent and it goes down way too smoothly.”
For those looking for a starter craft lager, look no further than Trace Brewing in Bloomfield, where the Kellerbeer is a great seller all year round.
“It’s a pale lager. It’s straw in color and very approachable. It goes nicely with food,” said Aadam Soorma, head of marketing at Trace Brewing.
They also have a Czech pale lager called Tonk that they made in collaboration with the music festival Pittonkatonk, held annually in early May in Pittsburgh’s Schenley Park.
Soorma said to look at breweries like Old Thunder in Blawnox and Golden Age in Homestead, local spots doing great things with this style of beer.
“They’ve leaned into this style by doing it the right way,” he said.
IPAs
Soorma said that, looking at trends, normally beer styles will have a peak and then fall again in popularity. Not so with IPAs.
“It’s definitely a style that’s still working for us,” he said.
IPAs, or India Pale Ales, are a favorite of beer aficionados. They tend to be much hoppier, more bitter and higher in alcohol content than a lager, but many contain summer flavors that make them a great warm-weather choice.
Guidos said that All Saints loves its IPAs.
“We have a nice English-style IPA, which is pretty well-balanced with malt and hops,” he said.
Even Cinderlands’ Easy Course has an IPA, designed for easy drinkability.
“We’ve got to do it for the hop heads,” Larrick quipped. “They love it, and we’re happy to brew it. It’s great. … It’s got a nice balance of sweetness to that bitterness.”
There are many different styles of IPAs, from hazy IPAs to regionally named brews, including East Coast and West Coast IPAs. Summer is a good time to explore the kaleidoscope of flavors.
Staab is a big promoter of the style.
“I’m personally more of a hop head myself, I lean more towards the IPAs. They’re fun beers to brew, and they never really go away. They’re often evolving in how bitter, how aromatic, the ABV [alcohol by volume], that kind of stuff.”
Sour beers
To touch on a different part of your taste buds, sour beers have also risen in popularity in recent years. These beers, often paired with fruity flavors, are brewed to bring out acidic flavors that make them extra refreshing for warm weather. They come in a wide variety of flavors, many full of summery or tropical tastes.
Trace Brewing tries to pour four seasonal sour beers a year, each with fruits that match the climate. The summer one is called Salva.
“It’s got mango, guava and passion fruit. It came out really good,” Soorma said. “It’s super fruit-forward and juicy.”
Yellow Bridge Brewing has a perfect “golf beer:” sour with a pop-culture-inspired name.
“It’s called What? Friends Listen to ‘Endless Love’ in the Dark,” Staab said. The name is a reference to a line from the 1996 Adam Sandler film “Happy Gilmore.”
The name makes sense, since the movie centers around golf and the beer evokes the flavors of the Arnold Palmer drink, with iced tea, peach and citrus.
“It’s super popular and really, really refreshing,” Staab said.
Some other options
Obviously, not everyone is a fan of beer, but one area of summer-perfect alcoholic beverage that has exploded in popularity in recent years is the hard seltzer. And never fear: many local breweries make those now, too.
Trace Brewing has one its calling Not Water.
“We tried to make one in-house, it’s black cherry,” Soorma said. “Our plan is to make that into a series.”
The brewery intends to use that same seltzer base with a variety of other fruit flavors.
And, of course, there are those who want the experience of drinking a beer without the booze, for any number of reasons. Non-alcoholic hoppy options are also rising in popularity, and Cinderlands certainly has your back.
“We have a non-alcoholic line called Hop Run, it’s a sparkling hop water,” Larrick said. “There are no calories, no sugar, no alcohol.”
But the beverage doesn’t skimp on flavor, she assured. “It’s really juicy, citrusy, balanced with some berry notes.”
It’s also a good end-of-night closer; she described it as “pure hydration.”
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