HomeMy WebLinkAbout08. Declaration of Garth Ashpaugh{KCO2357256.DOCX;1/07851.000003/ }
1 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON RE: TracFone Wireless, Inc. Administrative Appeal
DECLARATION OF GARTH T. ASHPAUGH IN SUPPORT OF THE CITY OF RENTON’S MOTION FOR PARTIAL SUMMARY JUDGMENT
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I, Garth T. Ashpaugh, declare under penalty of perjury under the laws of the State of 3
Washington that the following is true and correct: 4
1. I am over the age of eighteen, and I am competent to testify in court as to the matters 5
set forth herein and make this declaration based upon my personal knowledge. 6
2. I am President and a Member of Ashpaugh & Sculco, CPAs, PLC (“A&S”), an 7
accounting and consulting firm my partner, Carolyn Sculco, and I formed in 1999. I am also a 8
licensed Certified Public Accountant in Florida (#0023193) and Missouri (#007098) and a member 9
of the American Institute of Certified Public Accountants. I am also a member of the National 10
Association of Telecommunications Officers and Advisors (“NATOA”), and I served on the Board 11
of NATOA as its Secretary/Treasurer for four terms and was made a Life Member. My experience 12
with the telecommunications industry spans decades, dating back to the early 1980’s and the 13
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divestiture of AT&T in the various so-called “baby bells” (e.g., Pacific Northwest Bell, Bell South, 1
etc.). I have been engaged in utility matters and regulation full-time for over twenty years. I have 2
been a consultant since 1991 and have worked as an Audit Supervisor with the Missouri Public 3
Service Commission. My primary focus with A&S is working for local governments on 4
telecommunications and franchise matters. Attached hereto as Exhibit 1 is a true and correct copy 5
of my curriculum vitae and record of testimony. 6
3. Over the course of my career, I have conducted numerous audits of various utilities 7
(e.g., gas, electric, water, wastewater, telecommunications, etc.), including audits of other prepaid 8
wireless companies like TracFone Wireless, Inc. (“TracFone”), namely Cricket and NextTel (d/b/a 9
Boost) for Lincoln, Nebraska. I am familiar with the business model of prepaid wireless companies 10
who purchase or lease excess wireless service (also known as airtime and Commercial Mobile 11
Radio Services (“CMRS”)) from network carriers (e.g., AT&T, T-Mobile/Sprint, Verizon, etc.) at 12
wholesale and then resell the wireless service at retail to end users (also known as subscribers or 13
customers).1 14
4. For purposes of the instant case, I reviewed representative agreements between 15
TracFone and network carriers, specifically T-Mobile and Sprint. These carrier agreements 16
confirmed that TracFone has purchased for resale access to wireless service at wholesale from the 17
carrier. [See TF_000664.] The agreement between TracFone and T-Mobile confirmed that 18
TracFone is solely responsible for any local taxes due. 19
[BEGIN CONFIDENTIAL] 20
8.3. Tariffs, Taxes or Other Governmental Charges. DEALER will provide to 21
CARRIER valid and complete resale exemption certificates for CRS purchased from 22
CARRIER and distributed to End Users. DEALER is solely responsible for the 23
1 The definition of Commercial Mobile Radio Services (“CMRS”) at 47 CFR 20.3 is referenced in defining Mobile
Telecommunications Service that is subject to the City’s Cellular Telephone Business tax in City of Renton Municipal
Code Section 5-11-3 and Revised Code of Washington (RCW) 82.04.065(15).
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computation and collection of all applicable taxes or other governmental charges 1
including but not limit to sales, use, excise, gross receipts, public utility, value added 2
tax, Universal Service Fund fees, business activity and other taxes or impositions and 3
federal, state or local regulatory surcharges, (collectively, "Taxes and Governmental 4
Charges") levied by or remitted to federal, state or local authorities, or foreign 5
governments and imposed upon Dealer or Carrier with respect to the transactions or 6
payments contemplated hereunder (with the exception of net income, capital stock or 7
net worth taxes of Carrier). DEALER is solely responsible for the timely and accurate 8
remittance of those Taxes and Governmental Charges to the appropriate tax r:'urisdictions 9
or Governmental Authorities. If CARRIER is required to remit Taxes and Governmental 10
Charges directly to a tax jurisdiction or Governmental Authority, CARRIER will invoice 11
DEALER for those Taxes and Governmental Charges and DEALER will pay them to 12
CARRIER, under Section 5.13, unless prohibited by applicable statute(s). 13
[Emphasis Added.] 14
(TF_000678) 15
[END CONFIDENTIAL] 16
5. Attached hereto as Exhibit 2 (CONFIDENTIAL) are true and correct excerpts from 17
the T-Mobile and Sprint carrier agreements provided by TracFone. 18
6. The carrier agreements also make it clear that the retailers are not the “end user.” 19
For example, the T-Mobile agreement has the following definitions: 20
[BEGIN CONFIDENTIAL] 21
"CRS" shall mean cellular radio service provided by CARRIER (through its own 22
Facilities or those of a Roaming Carrier), operating in the 1.9 GHz band using GSM 23
technology, to provide telecommunications and data transmission to and from Cellular 24
Mobile Radio Units, which may include long distance and directory assistance and the 25
other services set forth in Exhibit 2. 26
“Dealer” shall mean TracFone Wireless, Inc., a Florida Corporation” 27
“End User” shall mean a Person who purchase CRS from the Dealer 28
"Person" shall mean any individual, subsidiary, corporation, limited liability 29
company, partnership, co-partnership, firm, joint venture, association, joint stock 30
company, trust, estate, unincorporated organization, governmental or regulatory body 31
or other entity. (TF_000660 - TF_000663) 32
[END CONFIDENTIAL] 33
7. The T-Mobile agreement refers to the retailers as “Sub-dealers” and at Section 5.1 34
makes TracFone responsible for the Sub-Dealers’ adherence to the terms of the carrier agreement. 35
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[BEGIN CONFIDENTIAL] 1
Any breach by a Sub-Dealer of the terms of this Agreement shall be considered a breach 2
by DEALER and shall entitle CARRIER to pursue all rights and remedies it may have 3
under the Agreement or under the law.” (TF_000666) 4
[END CONFIDENTIAL] 5
8. In addition, Section 5.1 states: 6
[BEGIN CONFIDENTIAL] 7
DEALER shall be solely responsible and indemnify CARRIER for all risks, expenses and 8
liabilities incurred in connection with its sale of CRS including End User claims. Further, 9
DEALER shall be obligated to provide all customer service to its End Users, including 10
without limitation the issuance, sale, adjustment, modification, addition, replenishment or 11
recharge of any CRS.” (TF_000666) 12
[END CONFIDENTIAL] 13
9. As explained in the following, the retailers do not purchase cellular radio service 14
(“CRS”). 15
10. For purposes of the instant case, I reviewed TracFone’s business model, including 16
agreements between TracFone and retailers. Under these retail distribution agreements, the 17
retailers purchase handsets and plastic airtime cards (collectively, “equipment”) from TracFone to 18
sell to the public. The equipment is not capable of providing cellular radio services (also known 19
as wireless service, airtime, and CMRS) until “activated” by TracFone and cannot be used to 20
provide service through any wireless carrier except TracFone. Additionally, the carrier agreements 21
and retail distribution agreements prohibit the retailer, also referred to as Sub-Dealer, from selling 22
the equipment to anyone but an End User. 23
11. TracFone also sells equipment and wireless services at retail to its End Users both 24
directly via its website (www.tracfone.com) and its customer care toll free number. 25
12. End Users who buy TracFone airtime cards and TracFone-branded handsets from 26
third party retailers must still go through TracFone to “activate” and then use the wireless service. 27
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The activation process starts with the purchase of the equipment. When the equipment is scanned 1
for the purchase, TracFone is notified electronically. This is the first step in the activation. The 2
purchaser is not a wireless customer or End User until they contact TracFone via the website or 3
toll-free number to finally activate the equipment. With this final step, TracFone assigns the phone 4
to a network carrier and sends a signal to the equipment making it available to send and receive 5
wireless calls. With the airtime cards, TracFone’s signal downloads the additional prepaid minutes 6
to the assigned phone of the End User. It is obvious from the relationship between TracFone and 7
the retailers described in these agreements that TracFone, not the retailers, provides access to 8
wireless service. The relationship between TracFone and the retailer is more akin to an agent 9
relationship. In the Rent-A-Center retailer agreement reference is even made to it being a 10
“partnership”. (TF_000757) Attached hereto as Exhibit 3 (CONFIDENTIAL) are true and correct 11
excerpts from the retailer agreements provided by TracFone. 12
13. For purposes of the instant case, I also reviewed representative resale certificates 13
for Walmart and K-mart. These specifically state that the products are cellular handsets, airtime 14
cards and accessories, do not address wireless services or CRS as discussed above and confirm 15
that TracFone’s retail agents are exempt from sales and use tax on the transactions between 16
TracFone and the retailer. Attached hereto as Exhibit 4 are true and correct copies of representative 17
resale certificates provided by TracFone. 18
14. I reviewed filings by TracFone with the Federal Communications Commission 19
(“FCC”) and confirmed that TracFone is subject to regulation by the FCC as a telecommunications 20
company. This is important because it shows that TracFone is recognized by the FCC as a 21
telecommunications company. TracFone is a telephone business providing “access to network 22
telephone service” for purposes of the Renton Municipal Code and the Revised Code of 23
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Washington. Attached hereto as Exhibit 5 is a true and correct copy of a FCC document referring 1
to TracFone as a telecommunications company. 2
15. As referenced above, I also reviewed chapter 5-11 of the Renton Municipal Code 3
and the state statutes that authorize codes cities, such as Renton, to impose utility tax on telephone 4
businesses, specifically RCW 35A.82.050 through .060. Based on my knowledge of TracFone’s 5
business activities combined with my over two decades of experience in the telecommunications 6
industry, it is my expert opinion that TracFone’s gross revenues are subject to Renton’s six percent 7
(6%) utility tax because TracFone resells wireless service its End Users to access network 8
telephone service, specifically Commercial Mobile Radio Services, and therefore it is properly 9
taxable as a telephone business (“the business of providing [access to] network telephone service” 10
per RCW 82.16.010(7)(b)(iii) and (b)(ii)) for purposes of the Renton telephone utility tax. Based 11
on my reading of RCW 35A.82.060, the only exclusions from gross revenues subject to Renton 12
utility tax are as set forth in RCW 82.04.065(27), which include, but are not limited to, revenue 13
from interstate services, Internet and data. Gross revenues from sales by retailers (e.g., Safeway, 14
Rent-A-Center, Walmart, Walgreens, Circle K) are included in the measure of Renton telephone 15
utility tax because TracFone, not the retailers, is reselling wireless service (aka CRS) / access to 16
network telephone service. In other words, the resale exemption applies to the transactions between 17
TracFone and the carriers, as wholesale transactions, and not to the revenues from TracFone’s 18
retailers. 19
16. In 1989, a bill was passed in Washington titled “Limiting taxes on resale of network 20
telephone service”. A true and correct copy of the Washington State Senate Bill Report concerning 21
this is attached hereto as Exhibit 6. It states: 22
Cities, code cities and towns may impose tax on 100 percent of the total gross revenue 23
derived from intrastate toll service, but they may not impose a fee or tax upon that 24
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portion of network telephone service which represents a charge to another telephone 1
company. 2
The resale transactions between TracFone and the carriers is such a transaction – “a charge to 3
another telephone company.” See Ex. 6 in the “Summary.” 4
17. The Bill Report explains that with the divestiture of AT&T (the split of the Bell 5
Telephone system into 7 different regional companies plus a remaining smaller AT&T), it 6
needed to be clear that since fees were being paid on the end use of telecommunications no 7
additional taxes or fees should be assessed on the transaction between the telecommunication 8
companies. 9
Cities may impose telephone utility taxes on telecommunications companies. With the 10
AT&T divestiture separate local and long distance companies emerged. One arrangement 11
of the divestiture was that long distance companies would pay an access charge to the 12
local company to make interconnections. Cities impose utility taxes on both local and 13
long distance companies for calls within the state. Both companies pay taxes on the same 14
access charges. The access charge receipts are part of the local company's taxable 15
income, and the long distance company's taxable income includes long distance call tolls, 16
which are priced so as to include the access charge. 17
Any such additional taxes and fees would have resulted in double taxation. The legislation in 18
Washington was similarly duplicated in states across the country. 19
SIGNED this 29th day of January 2021 at Trinity, Florida. 20
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By /s/Garth T. Ashpaugh 22
Garth T. Ashpaugh 23
Certified Public Accountant 24
Ashpaugh & Sculco, CPAs, PLC 25
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{KCO2357256.DOCX;1/07851.000003/ }
CERTIFICATE OF SERVICE 1
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I, Kenya Owens, an employee of Ogden Murphy Wallace, PLLC, certify that on the date 3
below, I filed and served the Declaration of Garth Ashpaugh in support of the City of Renton’s 4
Motion for Partial Summary Judgment via email on the following parties: 5
TracFone Wireless, Inc. 6 7 Scott Edwards 8 Lane Powell, PC 9 1420 5th Avenue, Suite 4200 10 Seattle, WA 98101 11 EdwardsS@LanePowell.com 12 13 Grant S. Degginger 14 Lane Powell, PC 15 1420 5th Avenue, Suite 4200 16 Seattle, WA 98101 17 DeggingerG@LanePowell.com 18
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I declare under penalty of perjury under the laws of the State of Washington that the 20
foregoing is true and correct. 21
Executed at Seattle, Washington this 29th day of January 2021. 22
/s/Kenya Owens 23
Kenya Owens 24
Legal Assistant 25
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