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Opinion No. 5201

June 9, 1977


Denial of equal protection in the field of taxation.


Sales tax on food or drink sold from a vending machine or a mobile facility.

In the field of taxation, the legislature has considerable leeway in establishing classifications.

There is no violation of the Equal Protection Clause where the legislature has provided that food or drink is exempt from sales tax when sold at a counter, concession stand or market but is subject to sales tax when sold from a vending machine or mobile facility.

Honorable Harry A. DeMaso

State Senator

Capitol Building

Lansing, Michigan

You have noted that candy bars sold at a counter, concession stand, food market, drugstore, etc., are exempt from sales tax and have asked for my opinion as to whether the imposition of a sales tax on these same items when sold from a vending machine or mobile facility is in violation of the Equal Protection Clause of the Constitution.

On November 5, 1975 the people amended Const 1963, art 9, Sec. 8 which, in pertinent part, now states:

'No sales tax or use tax shall be charged or collected from and after January 1, 1975 on the sale or use of prescription drugs for human use, or on the sale or use of food for human consumption except in the case of prepared food intended for immediate consumption as defined by law.' [Emphasis added.]

1976 PA 310 added Section 4g to the General Sales Tax Act, MCLA 205.54g; MSA 7.525(7). It defines the tax immune category of 'prescription drugs for human use' and 'food for human consumption.' It also contains a definition of the category of 'prepared food intended for immediate consumption,' which category remains subject to the sales tax. In pertinent part, the statute provides:

'(4) 'Prepared food intended for immediate consumption' means a retail sale of:

' (e) Food or drink intended for immediate consumption sold from a vending machine or by a vendor from a mobile facility.'

Thus, the legislature has clearly stated that food and drink dispensed from vending machines or mobile facilities are subject to sales tax whereas food and drink sold at a counter or in a food market, drugstore, etc. are not.

In the field of taxation, the legislature has considerable leeway in establishing classifications. A statement of this principle is found in Detroit Edison Co v East China Township School District, 247 F Supp 296, 303 (1965), aff'd 378 F2d 932, cert den, 389 US 932; 388 S Ct 296; 19 L Ed 2d 284 (1967), where the Court said:

'The power of the court over state taxation is limited. The constitution does not require that benefits be exactly proportional to burdens, nor that every taxpayer actually receive a direct benefit. '[T]here are doubtless many individual cases where the weight of a tax falls unequally upon the owners of the property taxed. This is almost unavoidable under every system of direct taxation. But the tax is not rendered illegal by such discrimination.' Union Refrigerator Transit Co v Comm. of Kentucky, 199 U.S. 194, 203, 26 S. Ct. 36, 37, 50 L. Ed. 150 (1905). '[A] state tax law will be held to conflict with the Fourteenth Amendment only where it proposes, or clearly results in, such flagrant and palpable inequality between the burden imposed and the benefit received, as to the amount to the arbitrary taking of property without compensation--'to spoliation under the guise of exerting the power of taxing." [Citation omitted.] The test for a tax is 'whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state. The simple but controlling question is whether the state has given anything for which it can ask return.' State of Wisconsin v J. C. Penny Company, 311 U.S. 435, 444, 61 S. Ct. 246, 250, 85 L. Ed. 267 (1940).' 247 F Supp, supra, 303.

More recently in Stockler v State of Michigan, ---- Mich App ----, Docket No. 27624, opinion issued May 16, 1977, the Court stated:

'Our Supreme Court had held that the legislature may choose to exempt certain persons from taxation. C F Smith Co v Fitzgerald, supra. In Lenhausen v Lake Shore Auto Parts Co, 410 US 356; 93 S Ct 1001; 35 L Ed 2d 351 (1973), the United States Supreme Court held that a state constitutional provision exempting individuals from personal property taxes, and thus operating to impose such taxes on corporations and nonindividuals is not violative of equal protection. In summing up equal protection tests regarding taxation, the Court stated:

"The Equal Protection Clause does not mean that a State may not draw lines that treat one class of individuals or entities differently from the others. The test is whether the difference in treatment is an invidious discrimination. Harper v Virginia Board of Elections, 383 US 663, 666; 86 S Ct 1079; 16 L Ed 2d 169 (1966). Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation. As stated in Allied Stores of Ohio v Bowers, 358 US 522, 526-527; 79 S Ct 437; 3 L Ed 2d 480 (1959):

"'The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of The Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value." 410 US 356, 359-360.

'The Court added:

"There is a presumption of constitutionality which can be overcome 'only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.' 'The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." 410 US 356, 364, quoting Madden v Kentucky, 309 US 83, 88; 60 S Ct 406; 84 L Ed 590.'

It cannot be said that the legislature did not make a reasonable distinction when it imposed a sales tax on food and drink sold from a vending machine or a mobile facility because when these items are dispensed in that fashion, they are generally consumed immediately.

I am, consequently, of the opinion that the legislature may classify food or drink sold from a vending machine or from a mobile facility as 'prepared food intended for immediate consumption' without violation of the equal protection clauses of the Michigan and United states constitutions.

Frank J. Kelley

Attorney General