How did the original 1997 ruling tax supermarket loyalty-card discounts, including supplier-funded scan-buy-downs?

Plain-English summary

This original order treated scan-buy-down discounts as taxable manufacturer-coupon reimbursements, while treating the other listed supplier programs as cash discounts excluded from sales price. Declaratory Order 97-06 later amended and superseded this result after the Company supplied a different fact about how scan-buy-down payments worked.

The Company operated Rhode Island supermarkets and offered customer discounts through an electronically readable loyalty Card. Supplier programs included off-invoice allowances, bill-back allowances, scan-buy-downs, net-price adjustments, and advertising sponsorships.

The facts originally presented said suppliers paid scan-buy-down amounts for units sold to customers who presented a Card. The Division therefore analogized the Card to an electronic manufacturer coupon: the customer paid the reduced amount, the supplier reimbursed the retailer, and tax applied to both amounts together.

The ruling excluded the other supplier programs from sales price as cash discounts. It also refused the requested January 1, 1998 effective date and applied immediately to the existing program.

What this means for you

Researchers and tax professionals

Use this page as historical context only. The later 97-06 order says supplier payment was actually based on every unit sold regardless of Card use and supersedes this ruling.

Retailers

Coupon tax treatment can turn on the precise payment trigger. Reimbursement caused by customer coupon use may remain in sales price, while a general per-unit supplier allowance may support different treatment.

Auditors

Compare supplier contracts and payment data with the facts stated in any ruling. The change between 97-03 and 97-06 resulted from one omitted fact, not merely a different legal interpretation.

Common questions

What did 97-03 originally say about scan-buy-downs? It treated them as taxable manufacturer-coupon reimbursements.

Which discounts did it exclude from sales price? Off-invoice allowances, bill-back allowances, net-price product adjustments, and advertising sponsorships.

Is 97-03 still the operative ruling for this program? No. Declaratory Order 97-06 expressly amended and superseded it.

Why did the result change? The Company later said supplier payment applied to every unit sold, whether or not the customer used a Card.

When did this original order take effect? Immediately, rather than on the requested January 1, 1998 date.

Citations and references

• R.I. Gen. Laws § 42-35-8 — authority for the declaratory-ruling request.
• R.I. Gen. Laws § 44-28-12 — sale-price definition as printed on the official page.
• R.I. Gen. Laws § 44-18-13 — gross-receipts definition.
• R.I. Gen. Laws § 44-18-18 — sales tax on retail gross receipts.
• Rhode Island Regulation SU 95-140 — retailer and manufacturer coupon treatment.

Source

• Landing page: Rhode Island Declaratory Rulings
• Declaratory order: Declaratory Order 1997-03

Original ruling text

Ruling Request No. 97-03

Declaratory Rulings

Ruling Request No. 97-03

Re: Request for Ruling Regarding Cash Discounts Allowed and Taken on Certain Sales

Request for Ruling

On behalf of your client, ("Company"), you request a Declaratory Ruling pursuant to R.I.G.L. section 42-35-8 and Regulation DR 94-01 regarding the computation of the sales tax levied upon sales of merchandise sold under the Company's "Card" Program.

Facts

The Company owns and operates numerous supermarkets in Rhode Island. The supermarkets sell at retail a wide variety of food and other grocery items, as well as other products. The Company collects and remits sales taxes on its sales of taxable merchandise in accordance with R.I.G.L. section 44-19-10.

In order to promote customer loyalty, the Company has recently developed and implemented (and is continuing to develop and implement) a retail customer-specific discount program, referred to below as the "Card" program. Under this program, the Company issued an encoded electronically-readable card (a "Card") to all of its existing check-cashing and courtesy card customers, and continues to offer Cards to any customers who request one. Each Card, which is similar in shape, appearance, and function to a bank automatic teller machine (ATM) card, carries unique information that enables the Company to identify the customer to whom the Card was issued and to use the data gathered with the Card for various marketing purposes.

When a customer purchases goods at one of the Company's supermarkets, he or she may present the identification Card for scanning at the cash register. Purchases made by a customer who has presented a Card are eligible for price discounts announced by the Company on a periodic basis; the discounts are promoted by a number of methods, including, e.g., advertising circulars distributed by direct mail and at displays located in the supermarkets themselves. Customers who do not present the card when they make their purchases do not receive the discounts. The discounts typically involve price reductions, but sometimes take other forms such as an offer of "two items for the price of one" or the like.

The promotional discounts embodied in the Card program (as well as the information gathered through use of the Card) are intended to increase sales and customer loyalty, and to provide customers with better value for their shopping dollars. The choice of products to be discounted during any particular period is accordingly based upon a number of factors that encompass that goal. In determining whether to discount a particular product, however, the Company also considers the availability of supplier price discounts and reductions, as well as other supplier promotions, allowances, or sponsorships (collectively referred to below as "supplier discount programs"). These supplier discount programs are negotiated in the ordinary course of the Company's business for the applicable products from the products' manufacturers, distributors, promoters, and other suppliers (all referred to herein as "suppliers") who desire the Company's promotional service with respect to their products. These supplier discount programs may take any number of forms, including the following:

• "Off-Invoice" allowances, where the supplier reduces the invoice cost of a product to the Company for a limited period (e.g., a reduction from $10.00 to $8.00 in the Company's invoice cost to purchase a case of product units);
• "Bill-back" allowances, which are similar to off-invoice allowances, except the allowance is made separately from the invoice, which reflects the usual cost of the product to the Company;
• "Scan-buy-downs" where the supplier pays the Company a fixed amount per product unit sold to customers who present a Card at the time of purchase (determined based on cash register data, adjusted for lost sales);
• Net price product adjustments, where the supplier permanently reduces a product's invoice price to reflect a promotional allowance; and
• Advertising sponsorships, where the supplier pays the Company a fixed amount to be featured in Company produced periodic promotional and advertising materials.

These supplier discount programs often are combined; for example, a supplier desiring to promote a particular product might grant an "off-invoice" allowance for that product for a specified period and might simultaneously pay the Company an additional sum in order to have the Company feature the product as a sale item for Card participants in the Company's weekly advertising circular.

Ruling Requested

The cash discounts resulting from the supplier discount programs received by a customer upon presentation of a card for scanning at the Company's cash registers are not included in the definition of sales price and therefore not subject to tax.

The ruling issued as a result of this request be effective January 1, 1998 in order to allow the implementation of appropriate adjustments in the company's sales tax collection systems and procedures.

Discussion

Rhode Island General Law reads in pertinent part as follows:

44-28-12. "Sale price" defined -- "Sale price" means the total amount for which tangible personal property is sold or leased or rented...whether paid in money or otherwise, including the following:

(A) Any services that are part of the sale, valued in money, whether paid in money or otherwise.

(B) All receipts, cash, credits, and property of any kind.

(C) Any amount for which credit is given to the purchaser by the seller.

"Sale Price" does not include any of the following:

(A) Cash discounts allowed and taken on sales.

44-18-13. Gross receipts defined. -- "Gross receipts" means the total amount of the sale price, as defined above, of the retail sales of retailers.

44-18-18. Sales tax imposed.-- A tax is hereby imposed upon sales at retail in this state... at the rate of [seven percent] of the gross receipts of the retailer from such sales or rental charges...

Of the various supplier discount programs set forth in the "Facts", only one program, the "scan buy-downs" are directly related to card usage. Under the scan buy-down discount program the supplier pays the Company a fixed amount per unit sold to customers who present a card at the time of purchase. The card is used in lieu of a manufacturer's coupon and is akin to an "electronic coupon". Rather than customers having to cut and present coupons which the Company subsequently tabulates for reimbursement by the supplier, the card is scanned and each discount is recorded electronically.

Having determined that the scan buy-down is in the nature of an electronic coupon. Regulation SU 95-140 entitled "Coupons - Discounted Selling Price" is presented in pertinent part as follows:

Regulation SU 95-140

Price Reduction Coupons

In general, sales tax treatment of purchases mad or items obtained using coupons which result in a reduced price to the consumer is based on whether or not the retailer can be reimbursed for the coupon by a manufacturer or other third party.

Definitions

"Manufacturer's Coupon" is a coupon issued by a manufacturer, distributor, promoter, or any other third party.

"Manufacturer's Coupons." When a retailer accepts a manufacturer's coupon for which it receives reimbursement from any third party, the sales tax is computed on the full selling price of the item, i.e., the consideration paid to the retailer plus the face value of the coupon. The reimbursement may be in any form, including cash or credit towards the purchase of additional merchandise.

Using the manufacturer's coupon analogy, the reimbursement paid to the company for there per product unit sold as determined by the scanning procedure is part of the selling price. As such, the sales tax must be computed on the full selling price of the item, that is, the consideration plus the reimbursement it receives under the scan buy-down program.

Ruling

The "off-invoice allowance", "bill-back allowance", "net price product adjustments", and "advertising sponsorships" under the card program are in the nature of cash discounts taken on sales and not includable in the sales price of the item. The "scan buy-down" portion of the card program is subject to tax since the company is reimbursed by the manufacturer for each per product unit sold.

The company's request to have this Ruling apply January 1, 1998 cannot be granted. Rhode Island law and regulation must be applied to existing facts. To the extent that this card program currently exists, the Ruling is effective immediately.

This Ruling may be relied upon by the Company and shall be valid unless expressly revoked or until the applicable statutory provisions of law are amended in a manner that requires a different result or the underlying situations described above changes.

**R. Gary Clark

Tax Administrator**

July 7, 1997