HomeMy WebLinkAboutEx 30 Deposition Nate Malone Dec 17 2020.pdfDeposition of Nate Malone
In Re: TracFone Wireless, Inc.
December 17, 2020
206.287.9066 l 800.846.6989
1325 Fourth Avenue, Suite 1840, Seattle, Washington 98101
www.buellrealtime.com
email: info@buellrealtime.com
In Re: TracFone Wireless, Inc.Nate Malone
206.287.9066 l 800.846.6989
BUELL REALTIME REPORTING, LLC
a0330621-e50a-4fd9-9d9e-decb07dad0ef
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
________________________________________________________
RE: )
)
TracFone Wireless, Inc. )
)
Administrative Appeal )
)
________________________________________________________
VIDEOCONFERENCE DEPOSITION UPON ORAL EXAMINATION
OF
NATE MALONE
________________________________________________________
(All participants appearing via Zoom videoconference.)
Taken at
Covington, Washington
DATE TAKEN: December 17, 2020
REPORTED BY: KATHLEEN HAMILTON, RPR, CRR, CCR 1917
In Re: TracFone Wireless, Inc.Nate Malone
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1 A P P E A R A N C E S
2
APPEARING VIA ZOOM FOR THE APPELLANT:
3
GRANT S. DEGGINGER
4 SCOTT EDWARDS
Lane Powell PC
5 1420 Fifth Avenue
Suite 4200
6 Seattle, Washington 98111
206.223.7000
7 deggingerg@lanepowell.com
EdwardsS@LanePowell.com
8
9
APPEARING VIA ZOOM FOR THE CITY OF RENTON:
10
KARI L. SAND
11 Ogden Murphy Wallace P.L.L.C.
901 Fifth Avenue
12 Suite 3500
Seattle, Washington 98164
13 206.447.7000
ksand@omwlaw.com
14
15
16 * * * * *
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In Re: TracFone Wireless, Inc.Nate Malone
206.287.9066 l 800.846.6989
BUELL REALTIME REPORTING, LLC
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1 DEPOSITION OF NATE MALONE
2 EXAMINATION INDEX
3 EXAMINATION BY PAGE
4 MR. DEGGINGER............................................ 4
5 MS. SAND................................................. 136
6 MR. DEGGINGER............................................ 137
7
8
9 EXHIBIT INDEX
10 EXHIBITS FOR IDENTIFICATION PAGE
11 59 West's RCWA 82.14B.020 82.14B.020 Definitions 104
Effective: January 1, 2014 Currentness
12 60 ADMINISTRATIVE ORDER CITY OF RENTON dated June 19, 113
2019
13 61 CHAPTER 11 UTILITY TAX 114
62 Tracfone 60 MINUTES FOR TALK, TEXT, WEB 90 DAY 133
14 PLAN BASIC PHONE CARD
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In Re: TracFone Wireless, Inc.Nate Malone
206.287.9066 l 800.846.6989
BUELL REALTIME REPORTING, LLC
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1 COVINGTON, WASHINGTON; DECEMBER 17, 2020
2 9:04 a.m.
3 -o0o-
4
5 NATE MALONE witness herein, having been
6 first duly sworn on oath,
7 was examined and testified
8 as follows:
9
10 E X A M I N A T I O N
11 BY MR. DEGGINGER:
12 Q. Okay. Good morning, Mr. Malone. Could you
13 state your full name and provide your address for the
14 record?
15 A. My name is Nathaniel Orville Malone, and my
16 address is 16710 133rd Place Southeast, Renton,
17 Washington, 98058.
18 Q. Mr. Malone, have you ever had your deposition
19 taken before?
20 A. I have not.
21 Q. Okay. I'm going to briefly describe for you
22 what's going to happen today. I'm going to ask you a
23 series of questions. The court reporter is here and
24 she's taking down my questions and your answers
25 verbatim. Do you understand that?
In Re: TracFone Wireless, Inc.Nate Malone
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1 A. Yes.
2 Q. I'm going to presume that you understand my
3 question unless you tell me otherwise, and I'm happy to
4 rephrase my question if you don't understand it; okay?
5 A. Okay.
6 Q. If you need to take a break, because this --
7 these can go on a bit, please let me know. As long as
8 there's not a question pending, we're happy to do so.
9 Fair enough?
10 A. Yes.
11 Q. Is there any -- are you under any medication or
12 any illness that would prevent you from giving your best
13 testimony today?
14 A. I am not.
15 Q. Okay. All right.
16 Mr. Malone, what have you done to prepare for
17 your deposition today?
18 A. I have reviewed the audit files and pertinent
19 statutes and Renton Municipal Code, and also met briefly
20 with counsel, my counsel to prepare for this.
21 Q. When you say you've met with your counsel, do
22 you mean Ms. Sand who is here with us today?
23 A. I do.
24 Q. Have you met with anybody else in preparation
25 for your deposition?
In Re: TracFone Wireless, Inc.Nate Malone
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1 A. I met briefly with Jan Hawn.
2 Q. When did you meet with Jan Hawn?
3 A. Yesterday.
4 Q. What did you and Jan discuss?
5 A. We just wanted to go over the case and some of
6 the history involving the audit, especially in terms of,
7 since we were both involved in the audit, what roles we
8 each had and when, because that did evolve over time
9 from 2017 until present.
10 Q. And what roles did each of you have
11 respectively? Let's start with yours.
12 A. So we -- initially I started in March of 2017
13 with the City of Renton. Initially I had no involvement
14 at all with TRS until approximately July of 2017 when I
15 started to be included on some of the monthly updates
16 from TRS.
17 Throughout 2017 I had a smaller role until the
18 end of 2017 when I started to take more of the lead role
19 in communicating with TRS, Tax Recovery Services,
20 regarding the audit and other audits ongoing, as well as
21 managing the contract renewal and getting those items
22 through our process for contract renewals.
23 Q. And did you maintain having this lead role from
24 late 2017 forward?
25 A. There was some crossover in -- in 2018 where Jan
In Re: TracFone Wireless, Inc.Nate Malone
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1 did respond on some of the emails between TRS and the
2 City, but primarily from that point forward I was the --
3 the main point of contact for -- for TRS.
4 Q. Occasionally you'll hear a little delay between
5 your -- the end of your answer and the beginning of my
6 next question, and that's because I'm taking a few notes
7 along the way, so...
8 Let's see. What was Jan's role then in the --
9 the audit, the TracFone audit?
10 A. In -- in 2017 she was the -- the primary contact
11 for TRS regarding the TracFone case. She -- after 2017
12 when I took more of a lead role in the case, she was
13 more of an administrator role and would discuss and
14 review... things as needed.
15 Q. Do you remember specifically any time during the
16 audit when you conferred with Jan on a specific issue
17 regarding the TracFone audit?
18 A. I -- I believe that we did communicate several
19 times throughout the -- the audit regarding TracFone. I
20 cannot recall a specific time or specific topic that we
21 discussed, but especially towards the conclusion of the
22 audit and after the assessment was issued we did meet
23 several times.
24 Q. So you had more interaction with Ms. Hawn
25 regarding the audit after the audit was issued; is that
In Re: TracFone Wireless, Inc.Nate Malone
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1 correct?
2 A. I would say it was ongoing throughout.
3 Q. Okay. You know, what form did your
4 communication take? Your communication with Jan Hawn
5 that is.
6 A. I -- I would say primarily we would -- our
7 communication would have been verbal, in-person.
8 Q. Did you ever exchange emails with Jan about the
9 audit?
10 A. Yes, I believe we did exchange some emails about
11 the TracFone audit.
12 Q. Because we've never seen an email from you,
13 between you and Jan Hawn about this audit, so where
14 would those documents be?
15 A. There should be emails, and I -- I know we did
16 send some emails where we were discussing what... like,
17 who was to follow up with TRS and provide them with what
18 appropriate next steps would be, and I believe those
19 were provided.
20 Q. We've never seen them. Let's do this. You said
21 that you -- let me -- let me backtrack for a second,
22 because when I asked you what you did to prepare for
23 your deposition, one of the other things you said is
24 that you reviewed the audit files?
25 A. Uh-huh.
In Re: TracFone Wireless, Inc.Nate Malone
206.287.9066 l 800.846.6989
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1 Q. Can you tell me what the audit files for the
2 TracFone audit consist of?
3 A. The audit files that I reviewed primarily
4 consisted of the final audit report, the letter; the
5 schedules that were provided by TRS; as well as the
6 methodology document; and then also some of the monthly
7 statements that had some information regarding the
8 process of the -- the audit.
9 Q. You mean the monthly reports that TRS would send
10 to the City; is that what you're referring to?
11 A. Yes, it is.
12 Q. Is there a... This is a record-keeping type of
13 question, but is there a... electronic or paper file
14 that one would see that says "TracFone audit" that is in
15 the possession of the City of Renton that has all the
16 documents you referred to in -- in one location?
17 A. Yes, there is a file on -- that is electronic,
18 but primarily for this case there -- we have been using
19 the -- I -- in particular for the preparation, I was
20 using the files that were on the share file site that we
21 had prepared, which was essentially a combination of the
22 records that the City had as well as the records that
23 TRS had provided in response to this case.
24 Q. Would you consider the documents regarding
25 TracFone in the possession of TRS to be part of the
In Re: TracFone Wireless, Inc.Nate Malone
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1 audit file for the City of Renton on this matter?
2 A. I would say yes, those are relevant documents to
3 the audit file.
4 Q. And do they constitute a portion of the audit
5 file?
6 A. Yes, they would.
7 Q. Okay.
8 Other than what's on the share file that you
9 described in terms of documents from TRS, what
10 documents -- are there any other documents that TRS has
11 regarding the TracFone audit that are not include --
12 that -- that are part of the City's audit file? Do you
13 understand my question? Because it's...
14 A. Not exactly. If you would rephrase a little
15 bit, that would be great.
16 Q. I'd be happy to, because it was sort of a
17 rambling question.
18 What I'm trying to ascertain, sir, is whether
19 there are -- you mentioned that there are documents that
20 TRS has provided in this matter that are on the share
21 file that was produced to Mr. Edwards and I; right?
22 A. Correct.
23 Q. And what I'm trying to ascertain is whether
24 there are other documents from TRS about the TracFone
25 audit that have not been provided and put on the share
In Re: TracFone Wireless, Inc.Nate Malone
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1 file that you consider to be part of the audit file.
2 A. Not that I am aware of.
3 Q. All right.
4 Have you spoken with Mr. Ashpaugh regarding --
5 in -- in preparation for your deposition?
6 A. I have met briefly with Mr. Ashpaugh prior to
7 November when I was on a extended leave. So no, there
8 was no direct preparation that involved Mr. Ashpaugh.
9 Q. Okay. Would it be -- would I be correct in
10 understanding that you didn't speak to Mr. Ashpaugh
11 during the course of the preparation of the audit of
12 TracFone?
13 A. During -- before the assessment was issued?
14 Q. That's correct, sir.
15 A. That is correct, he was not part of the audit
16 prior to the conclusion.
17 Q. Had you even met Mr. Ashpaugh prior to the
18 conclusion of the audit?
19 A. I have not.
20 Q. Have you spoken with Mr. or Mrs. Crisp in
21 connection with preparing for your deposition?
22 A. The last time I spoke to them was also prior to
23 November when I went on my leave, and I had no direct
24 conversations with them regarding this deposition prep.
25 Q. Okay. When did you go on your leave?
In Re: TracFone Wireless, Inc.Nate Malone
206.287.9066 l 800.846.6989
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1 A. It started November 2nd.
2 Q. Okay. And when did you return?
3 A. I returned on this Monday, so 12/14.
4 Q. And you weren't working at all during your
5 leave; is that correct?
6 A. That is correct, except for the last week prior
7 I checked emails to try to catch up on my outstanding
8 items before returning.
9 Q. Was TracFone any of your outstanding items?
10 A. There was some emails regarding the TracFone
11 deposition and getting prepared for this deposition and
12 TracFone in general.
13 Q. Okay. Were they from your counsel?
14 A. There was some from counsel, yes.
15 Q. Were there from anyone else who wasn't your
16 counsel?
17 A. There was from, internal communications
18 primarily, Kari Roller who is essentially managing on
19 behalf of the City in my absence. She was kind of
20 managing the ongoing litigation. And there may have
21 also been some from -- from Jan Hawn.
22 Q. All right. Mr. Malone, what is your current
23 position with the City?
24 A. I am the tax and license manager for the City of
25 Renton.
In Re: TracFone Wireless, Inc.Nate Malone
206.287.9066 l 800.846.6989
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1 Q. And how long have you been the tax and license
2 manager?
3 A. My official title as tax and license manager
4 started in January of 2019. I started with the City
5 in -- in March 2017, like I said, and I think I
6 misstated. My tax -- tax and license manager position
7 was January 2019, and then prior to that I was the tax
8 and license program manager, and that was during, I
9 believe, four months or five months during 2018.
10 Q. Uh-huh.
11 A. And then prior to that I -- my title was tax
12 auditor for the City.
13 Q. Okay. So from March of 2017 to sometime in
14 2018, you were a tax auditor; is that correct?
15 A. That is correct.
16 Q. Okay. So help me understand what your duties
17 and responsibilities as a tax auditor were back in 2017
18 and [inaudible].
19 A. My duties as tax auditor, the City had just
20 implemented a B&O tax, which is a business and
21 occupation tax for businesses operating within the City.
22 And my role was to ensure that taxes were collected
23 correctly and accurately as well as auditing businesses
24 to ensure that they were paying the appropriate amount
25 based on the applicable statutes.
In Re: TracFone Wireless, Inc.Nate Malone
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1 I also during that time did more -- did take a
2 more managerial type role in the administration and
3 day-to-day operation of the tax that the City
4 administers. Prior to me joining the City, there was no
5 day-to-day tax manager or tax and license manager. It
6 essentially had gone through a -- a finance position,
7 like finance manager, prior to my arrival with the City.
8 Q. Okay. Let me unpack that a little bit. You
9 just gave me a lot of information. I'm just trying to
10 understand a little bit better. So in 2017, 2018,
11 you -- one of your first tasks was to help implement
12 the -- and "implement" means, I guess, enforce the new
13 B&O for the City; is that right?
14 A. It was not implementing. It was already
15 implemented prior to my arrival, but yeah, enforcing,
16 developing our systems, developing online filing, et
17 cetera.
18 Q. Okay.
19 MR. DEGGINGER: Seem to have lost Mr. Malone
20 here. I've got Kari on the screen. Can we switch --
21 THE WITNESS: Am I --
22 BY MR. DEGGINGER:
23 Q. Did something get switched?
24 MR. EDWARDS: Kari, I think there's a bit of
25 noise from your note-taking and that might be what's
In Re: TracFone Wireless, Inc.Nate Malone
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1 changing the video for Grant.
2 BY MR. DEGGINGER:
3 Q. There we go, thank you.
4 Mr. Malone, were you performing on -- B&O tax
5 audits during this period of time, 2017 to 2018?
6 A. There -- there was some minimal scope audits
7 during that time. The tax had just been implemented in
8 2016, so there wasn't a lot of look-back period. So it
9 was more -- there -- there was some records
10 reviewing-type audits, but primarily it was more
11 educational compliance communication-type audits.
12 Q. So your work was more forward-looking rather
13 than backwards-looking if you will?
14 A. I would say it is a combination of -- of both.
15 It was correcting prior periods and making -- like,
16 catching issues before they developed into larger issues
17 potentially.
18 Q. Prior to joining the City, where did you work?
19 A. I worked for the City of Tacoma.
20 Q. Oh, really? And for how long were you at the
21 City of Tacoma?
22 A. I was at the City from May 2014 until March
23 2017.
24 Q. What were you doing for the City?
25 A. I was a field auditor, tax -- tax and license
In Re: TracFone Wireless, Inc.Nate Malone
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1 field auditor.
2 Q. What does a field auditor do?
3 A. It's for city-administered taxes, B&O tax,
4 utility tax, gambling tax, admission tax.
5 Q. Did you perform audits of all those types of
6 taxes for the City of Tacoma?
7 A. Yes, I -- I did perform audits I believe for all
8 different types of -- of taxes during my time with the
9 City of Tacoma.
10 Q. Including utility tax; correct?
11 A. That is correct.
12 Q. Do you have any other work experience prior to
13 joining the City of Tacoma?
14 A. Prior to joining the City of Tacoma, I was with
15 the State of Washington Department of Labor &
16 Industries, and I held several titles with the
17 department. Initially I was a field auditor 3, and I
18 continued that role for approximately one year, one and
19 a half years. I started in November 2011.
20 And after that I was promoted to a field auditor
21 4, fraud auditor specifically was my title. And I
22 continued in that role until I started with the City of
23 Tacoma.
24 Q. Okay. Any other relevant work experience that
25 we haven't discussed?
In Re: TracFone Wireless, Inc.Nate Malone
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1 A. No, that would be it.
2 Q. Where did you -- were you in college before you
3 joined the State?
4 A. Yes, I was.
5 Q. Where did you go to school, sir?
6 A. I went to Central Washington University.
7 Q. And when did you graduate?
8 A. I graduated in June of 2011.
9 Q. And what was your degree in, sir?
10 A. Accounting.
11 Q. Are you a certified fraud examiner?
12 A. I am not.
13 Q. Does the... City of Renton have staff that
14 perform audits?
15 A. Are you asking currently or prior to my arrival
16 or --
17 Q. Well, I wouldn't ask you for prior to your
18 arrival, because I wouldn't expect you to know the
19 answer, although you might. But I would say, let's say
20 currently. So let me -- let me -- let me ask it
21 differently.
22 Since you've been with the City of Renton, does
23 the City have staff that performs audits?
24 A. Yes, we do. I was performing audits. I still
25 am in some capacity. And we also have one other tax
In Re: TracFone Wireless, Inc.Nate Malone
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1 auditor who started in September of 2019.
2 Q. So there are essentially two people that have
3 some part of their duties and responsibilities as
4 performing audit -- audits; is that correct?
5 A. That's correct.
6 Q. When you perform an audit -- well, first of all,
7 did you -- did you have to go through special training
8 to become an auditor?
9 A. I did go through training with all of my prior
10 employers. With the Department of Labor & Industries,
11 it was a pretty intensive training. My initial title
12 was field auditor 3 in training.
13 Q. Uh-huh.
14 A. I did several audits in conjunction with a more
15 senior auditor. There was also training on the job.
16 There was mock audits to kind of prepare what -- what
17 type of records are, you know, reviewed and what
18 outcomes come in a typical audit.
19 During my time with City of Tacoma, it was not
20 as formal of a training program. I was more shadowing
21 the senior field auditor who had been with the City
22 for -- for some time and had been involved in B&O taxes
23 and was a CPA for approximately 30 years. So that was
24 my primary training in the City of Tacoma.
25 I also attend local tax seminars. Last year
In Re: TracFone Wireless, Inc.Nate Malone
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1 went to the first Washington State tax seminar in
2 Pullman, which was a multiday event.
3 Q. What was the focus of that training, sir?
4 A. It was a lot of Washington State taxes, sales
5 tax, B&O tax, but there -- there was some relevant
6 local -- local tax items as well. But primarily --
7 Q. Like what?
8 A. -- it was -- I mean, since it was Washington
9 State B&O tax, the B&O tax is very similar with -- with
10 local levels. So a lot of that was kind of a crossover
11 between state and local taxes.
12 Q. Okay. Have you ever received specific training
13 on the -- on local tax -- local utility taxes?
14 A. I do not recall any specific training regarding
15 local utility taxes beyond the City of Tacoma, just
16 shadowing the senior auditor in her reviews of some of
17 the utility tax companies.
18 Q. And who were those companies that were audited?
19 A. I would not be able to name those.
20 Q. Oh, that's right. Yeah, we can't -- I can't ask
21 those kind of probing questions. Well, let me put it
22 this way. Were they companies that had franchises with
23 the City of Tacoma?
24 A. There likely was some that had franchises with
25 the City of Tacoma. Also some that likely did not.
In Re: TracFone Wireless, Inc.Nate Malone
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1 Q. Are you able to tell me what industries they
2 were?
3 A. We looked at telephone, telecommunications. We
4 looked at garbage, electricity. Even recently water,
5 sewer.
6 Q. Okay.
7 In your -- based on your training and the work
8 you do in the -- in auditing still, can you describe for
9 me what information -- well, when you do an audit, do
10 you create an audit file?
11 A. Yes, I -- I would create an audit file.
12 Q. What information goes into an audit file?
13 A. In an audit file that I would be preparing, I
14 would keep all of the relevant documents provided from
15 the taxpayer as well as a audit blue, which essentially
16 would be a timeline documentation of what I did during
17 the audit, who I contacted during the audit, discussions
18 with the taxpayer, relevant discussions with the
19 taxpayer.
20 Also would include work papers, summarizing work
21 paper and breakout work papers if -- if needed depending
22 on the audit complexity. Also might include some
23 emails, pertinent emails if there were emails that were
24 really pertinent to the case, but most of the time would
25 be summarized in -- in the audit blue.
In Re: TracFone Wireless, Inc.Nate Malone
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1 Q. When you say "pertinent emails", would that be
2 emails with the taxpayer?
3 A. Yes.
4 (Inaudible due to crosstalk.)
5 BY MR. DEGGINGER:
6 Q. I'm sorry, go ahead and finish your answer.
7 A. Yeah, that would mainly be emails with the
8 taxpayer.
9 Q. How about emails within your organization if
10 there were questions or issues that you were trying to
11 communicate or learn information internally?
12 A. I think it depends. I think most of the time I
13 would probably summarize those conversations and put
14 them in the audit blue as part of the audit
15 documentation.
16 Q. If you spoke with or if you had contact or spoke
17 with others who were not either within your organization
18 or within the taxpayer's organization, would you have
19 a -- maintain a record of it?
20 A. If it was pertinent information relative to the
21 audit, yes, there would -- it would be tracked in the
22 audit blue.
23 Q. Is "audit blue" a sort of a term of art in the
24 audit world?
25 A. Yeah, it -- it's really -- it came from my time
In Re: TracFone Wireless, Inc.Nate Malone
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1 with City of Tacoma. That's kind of the documentation
2 that we used. It's basically a timeline just of notes
3 essentially where you would put, you know, the date,
4 what you did, who you discussed it with, et cetera.
5 Q. Okay.
6 Getting back -- getting back to your work today
7 as the tax and license manager. Do you supervise
8 people?
9 A. I do.
10 Q. How many people do you supervise and what are
11 their duties and responsibilities?
12 A. Currently two. And one is the tax auditor, and
13 her duties would include auditing for city-administered
14 taxes, both full scope, minimal scope, as well as any
15 other tax-related items that could be involved in the
16 administration of taxes.
17 Q. Uh-huh.
18 A. The other is a accounting assistant 4. Her role
19 is more administrative, like taking payments, answering
20 phone calls, more -- more customer service facing.
21 Q. Okay. And who do you report to in your current
22 position?
23 A. Currently I report to Kari Roller who is the
24 fiscal services director. But that had -- has changed
25 throughout my time with the City as well.
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1 Q. Okay. Maybe you could describe for me how
2 that's changed.
3 A. Sure. So in 2017 I started as the -- the tax
4 auditor and I was reporting to Kari Roller. I was not
5 managing any -- anybody at -- during that time as the --
6 the tax auditor. Her -- Kari Roller was not the fiscal
7 services director. She was reporting to the fiscal
8 services director at the time.
9 Q. Who was that?
10 A. The fiscal services director at that time was
11 Jamie Thomas.
12 Q. Okay.
13 A. And the fiscal services director reports to the
14 ASD or administrative services director administrator,
15 which is Jan Hawn and has been throughout my time with
16 the City.
17 So getting back to who I was reporting to. So
18 2017 reporting to Kari Roller who was reporting to the
19 fiscal services director. Reported to Kari Roller
20 throughout my time with the City. The structure has
21 changed.
22 When I took over as -- we did a reorganization
23 when I became the tax and license manager and at that
24 time the two staff members reported directly to me.
25 Kari Roller's old position was changed to be a
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1 accounting and budget manager, so there was a separate
2 group of employees reporting to that position which has
3 been vacant, and my position then reported directly to
4 the fiscal services director.
5 Q. Okay. So just so I'm clear, Kari Roller wasn't
6 involved in the TracFone audit; correct?
7 A. No, she was not. She may have had some small
8 conversations here and there, but primarily it was Jan
9 Hawn.
10 Q. Okay.
11 And Jan is the administrative services director;
12 correct?
13 A. Correct.
14 Q. And who does she report to?
15 A. She reports directly to the mayor or chief
16 administrative officer.
17 Q. Okay.
18 Okay. Does -- since you've been at the City,
19 does the City hire outside consultants to perform
20 audits?
21 A. During -- like -- I guess can you rephrase the
22 question? Are you referring to have we hired new
23 consultants or have we contracted with new consultants?
24 Q. Okay. Let me be more specific. When you joined
25 the City, had the City been using outside consultants to
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1 perform audits?
2 A. Yes. TRS was our audit company performing
3 audits prior to my arrival.
4 Q. Did the City use any other outside consultants
5 to perform audits other than TRS to the best of your
6 knowledge?
7 A. Not that I am aware of.
8 Q. Okay.
9 Is TRS -- other than this matter that brings us
10 here today, is TRS performing any other audit for the
11 City of Renton?
12 A. Currently they are not.
13 Q. Okay.
14 When you joined the City in 2017, was TRS
15 performing audits other than the TracFone audit?
16 A. I don't know exactly the timing, but there --
17 there has been other audits after I started besides the
18 TracFone audit.
19 Q. That TRS was performing?
20 A. Correct.
21 Q. Since you joined the City, to the best of your
22 knowledge, have any new engagements with TRS been
23 entered into between the City -- with the City?
24 A. Regarding new audit engagements?
25 Q. Correct, yeah. Obviously when you joined the
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1 City, as we'll get into in a minute, the TracFone audit
2 was already underway; correct?
3 A. That is correct.
4 Q. So what I'm trying to find out is since you
5 joined the City, have there been any new engagements
6 entered into between the City and TRS?
7 A. Yes, there is one other. And I believe that
8 started shortly after I got involved in 2017.
9 Q. Okay. Were you involved in that other audit?
10 A. Yes.
11 Q. Has it been completed?
12 A. Yes, it has.
13 Q. Okay.
14 What was your -- what was your role with respect
15 to the other audit?
16 A. My role is more of a managerial contract-type
17 role. I will review the methodology and ensure that
18 their methodology is -- is sound, and take care of any
19 administrative-type functions that need to be done in
20 relation to the audit, like preparing any City
21 letterhead that they may need and answering questions as
22 they come up during the audit that TRS has regarding
23 some items that might be under dispute potentially.
24 Q. Who decides -- who in the City decides whether
25 to hire an outside auditor?
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1 A. That I do not know. That was done prior to my
2 time with the City of Renton.
3 Q. Was one of the reasons you were hired, if you
4 know, was to end the practice of using outside auditors
5 and to rely on internal staff to do that work?
6 A. I don't believe that that was the intention.
7 My -- my position was brought on to essentially oversee
8 and administer the new B&O tax, which they found was
9 more of an undertaking once they had implemented it.
10 Q. Do you know what the City's contracting
11 processes are for situations where the City wished to --
12 if the City wished to hire a outside auditor?
13 A. For an outside auditor, I don't know
14 specifically what requirements we might have, but we do
15 have a contracting policy. And I -- I have done other
16 contracts for other professional services during my time
17 with the City and am pretty familiar with that -- that
18 process.
19 Q. Okay. Can you describe for me briefly what the
20 contracting policy is of the City for hiring
21 professional services such as an outside auditor?
22 A. So for most of these situations that I have been
23 involved in, there has been a single source provider for
24 the services that we have been looking for, so we have
25 been able to enter in those agreements directly. There
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1 is a signing authority depending on the level or amount
2 of the contract that we anticipate the City being liable
3 for. I don't know those thresholds off the top of my
4 head without reviewing the contracting policy.
5 Q. Where would one find the contracting policy? If
6 you were just an ordinary citizen of the good City of
7 Renton --
8 A. Uh-huh.
9 Q. -- curious about what the City's contracting
10 policy was, how would you find that out?
11 A. I am not a hundred percent sure if they are
12 available through our external Laserfiche search portal.
13 Q. I sure as hell -- excuse me. I sure did not
14 find it when I looked for it and I'm just a humble
15 country lawyer.
16 A. Okay. Yeah, I -- I don't know if those are
17 available to the public. I -- I don't know if our
18 policies, internal policies are made public on our
19 external public website or not.
20 Q. Okay. But what you were saying was -- was
21 there's a policy, certain people have a certain amount
22 of authority to contract -- dollar amount before --
23 before somebody else has to review it; is that right?
24 A. That is correct.
25 Q. And you don't know what those thresholds are?
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1 A. I do not know off the top of my head, no.
2 Q. Okay.
3 When the compensation is contingent, if you
4 will, on the recovery, how does one calculate what the
5 threshold for following the contracting policy is?
6 A. That is one of the difficult pieces. I believe
7 that you would have to use an estimate.
8 Q. Do you know if that was done in the case of this
9 contract between TRS and the City of Renton?
10 A. I believe it may have been done on the 2018
11 contract when we essentially kind of reworked the whole
12 contract and ran it through the appropriate approval
13 process through the City Clerk's Office and getting the
14 appropriate signatures.
15 Q. What about the first contract that was in place
16 when you first became involved with the TRS assignment
17 involving TracFone, was that contract -- were you -- did
18 you have occasion to review that contract?
19 A. I have briefly reviewed it. I don't know what
20 levels of review it went through, what estimation
21 procedures were used, what levels of review or anything
22 regarding, you know, what -- who reviewed it or how it
23 was estimated or anything like that prior to my arrival.
24 Q. Did you ever try to find out?
25 A. I did not.
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1 Q. Wouldn't you want to know that information
2 especially before you started revising the contract in
3 later years?
4 A. It may be -- it may have been useful. However,
5 my take on getting the contract for 2018 forward was
6 ensuring that we followed the -- the procedure and the
7 policy in place at -- at that time. I don't know if the
8 policy had been different prior to my arrival in terms
9 of who was reviewing either.
10 Q. Do you know who was doing that work before you?
11 A. So prior to my arrival, Jan Hawn may have had
12 some limited role, but before her arrival, which was,
13 you know, shortly before my time with the City, it would
14 have been Iwen Wang who was -- who did administrative
15 services administrator.
16 Q. So did Iwen -- I'm sorry, are you finished with
17 your answer?
18 A. Yeah.
19 Q. Was Iwen in the position that Jan Hawn currently
20 holds?
21 A. Yeah, that's correct. That's what I was trying
22 to get at at the end there.
23 Q. Right. Where is Iwen now?
24 A. I do not know.
25 Q. Okay.
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1 Why don't we have you... open the envelope A,
2 envelope A. Do you have that?
3 A. I do.
4 Q. Kind of like being in the academy awards,
5 Mr. Malone, you get to open the envelopes.
6 Okay. And for the record, is envelope A -- I
7 believe it should be the same as Exhibit 1 from a prior
8 deposition, and is it the -- a document that has on the
9 first page a Bates number of 000443?
10 A. Yes, it is.
11 Q. Good. The system worked.
12 Is this -- can you identify this document for me
13 as something that you've seen before?
14 A. This looks like the contract agreement with TRS
15 and the City.
16 Q. And is it my understanding from your testimony
17 that you were involved when you got to the City in
18 managing this contract in part?
19 A. Once -- once really -- like I said before, I
20 really took over more of the contract portion at the end
21 of 2017 when the new contract was -- was enacted.
22 Q. I understand that, but presume if you're going
23 to renew a contract or revise a contract, you have to
24 start with the contract that's in existence at the time;
25 correct, sir?
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1 A. That is correct.
2 Q. And it would be improvident not to review the
3 existing contract before you revise it?
4 MS. SAND: Objection. Argumentative.
5 BY MR. DEGGINGER:
6 Q. Go ahead and answer the question.
7 A. Can you repeat the question?
8 Q. No, but the court reporter can.
9 (Question was read back.)
10 THE WITNESS: I don't know that term,
11 "improvident".
12 BY MR. DEGGINGER:
13 Q. Okay. Let me -- let me try a different term for
14 you. What I'm trying to say is, as someone who's been
15 asked to manage a contract with a vendor, in this case
16 TRS, isn't it important to know what their duties and
17 responsibilities to the City are under their contract
18 with you?
19 A. I would say yep, it is important to know what --
20 what their duties are.
21 Q. Okay. And are their duties and responsibilities
22 set forth in the contract, sir?
23 A. I believe there are duties set forth in the
24 contract --
25 (Inaudible due to crosstalk.)
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1 THE WITNESS: -- the scope of services.
2 BY MR. DEGGINGER:
3 Q. And there's a couple places where those services
4 are described. First of all, if you look at page 450.
5 A. (Complies.)
6 Q. Are you there?
7 A. Yes, I am.
8 Q. Okay. It describes a scope of services;
9 correct?
10 A. Yes, it does.
11 Q. Did you review that scope of services when you
12 began to be involved in the... managing the audit?
13 A. I do not know if I reviewed this exact exhibit
14 scope of services when I started in 2017 being involved
15 in the TRS contract.
16 Q. You don't know if you did, you can't remember
17 one way or the other; is that what you're telling me?
18 A. That is correct. I do not remember until we
19 started working on the new contract.
20 Q. All right. Well, let's take -- turn the page to
21 4 -- page 451. Do you see the section there titled
22 COMPENSATION?
23 A. Yes.
24 Q. Did you review that portion of the agreement?
25 A. I didn't review this exact page, but I was aware
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1 of what the compensation was.
2 Q. What was the compensation as you understood it?
3 A. It was 23 percent of the actual revenue
4 recovered from the performance of their scope of
5 services.
6 Q. And would that include both principal and
7 interest and penalties?
8 A. I believe that it would.
9 Q. So as interest accrued, 23 percent of that goes
10 to TRS; is that your understanding?
11 A. Yes, that would be my understanding.
12 Q. Okay.
13 I want you to turn back to the first page of
14 Exhibit 1.
15 MS. SAND: Is that page 443?
16 MR. DEGGINGER: That's correct, Counsel.
17 BY MR. DEGGINGER:
18 Q. Do you see the section titled SERVICES?
19 A. Yes.
20 Q. Did you review that portion of the agreement in
21 connection with your administration of this contract?
22 A. I do not believe I reviewed this contract in its
23 entirety until -- really until we developed the new
24 boilerplate contract with our legal counsel in -- in the
25 end of 2017.
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1 Q. So in connection with preparing a new contract,
2 you did review this agreement in its entirety; is that
3 right?
4 A. To some degree. I -- I did not go through it
5 line by line. I'm not an attorney. We have legal
6 counsel that reviews our -- our contracts and ensures
7 that the wording is sound.
8 Q. Well, take a look at the SERVICES section, and
9 particularly the first sentence. It says, "The
10 Contractor shall perform the services more specifically
11 described in Exhibit A, attached hereto and incorporated
12 by this reference" -- and it says, ("Services") -- "in a
13 manner consistent with the accepted professional
14 practices for other similar services in the Puget Sound
15 region in effect at the time those services are
16 performed..." and it goes on further. Do you see that?
17 A. Yes, I do.
18 Q. Now, you're an -- you have auditing experience;
19 right?
20 A. I do.
21 Q. And you've been trained as an auditor?
22 A. Yes.
23 Q. And this is a contract for auditing services;
24 right?
25 A. Yes.
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1 Q. So when it's described that the contractor is
2 going to perform the services in a manner consistent
3 with accepted professional practices for similar
4 services and in the Puget Sound region, that means
5 auditing services; correct?
6 A. Yes.
7 Q. So who's going to be in the best position to
8 determine whether those services are performed in a
9 manner consistent with those professional practices, you
10 or the City Attorney?
11 A. In regards to who would be most familiar with
12 the standard professional auditing practices?
13 Q. Yes, sir.
14 A. I would probably say that I would have a more
15 firm grasp on what professional practices an auditor
16 might be held to.
17 Q. At the time that you were negot- -- or working
18 on the new contract with TRS in late '17 or early '18,
19 if I have those chronology correct, what did you do to
20 determine if TRS was performing the services in a manner
21 consistent with the accepted professional practices of
22 auditors [distorted audio]?
23 A. I do not believe that we did any review of their
24 history. I -- I do know that we -- I was familiar with
25 TRS prior to my time with the City. I -- I knew who was
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1 operating the company and what his history was prior to
2 starting TRS. I know that he was an auditor for the
3 City of Tacoma for a number of years, had done audits
4 for the City of Tacoma prior to starting TRS. I -- I
5 was not aware of any ongoing training or other
6 professional trainings that he had done after that date
7 or through -- through current.
8 Q. Are you done with your answer, sir?
9 A. Yes.
10 Q. Okay.
11 How did you know Mr. -- is it Mr. Crisp that you
12 knew?
13 A. Yes.
14 Q. And how did you -- you said you knew him before
15 you came to the City of Renton. Can you describe for me
16 the circumstances under which you knew Mr. Crisp
17 previously?
18 A. Yes, I did -- I did not know him by person. I
19 knew him by -- by name only. My -- during my time with
20 the City of Tacoma, there obviously was prior audit
21 records that I was reviewing as part of my training and
22 I know that his name was involved in many of the audits.
23 I also -- there was also auditors there during my time
24 that had worked with Mr. Crisp during his time with the
25 City of Tacoma prior to starting TRS.
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1 Q. Uh-huh.
2 A. That's -- that's the extent of my knowledge of
3 Mr. Crisp prior to.
4 Q. So fair to say that you knew him anecdotally,
5 but not personally?
6 A. Correct.
7 Q. Okay. And he had worked at the City of Tacoma
8 before you joined the City?
9 A. Correct.
10 Q. All right. You had never worked with Mr. Crisp
11 in connection with any audit; right?
12 A. That is correct, I had not.
13 Q. Okay.
14 In looking at the requirements for services that
15 I was referring to in paragraph 2, would it be your
16 expectation that the accepted professional practices
17 would include some of the things that you mentioned to
18 me when you were describing what an auditor does? For
19 example, would it include maintaining a record of all
20 people contacted in connection with the audit?
21 A. I think to a degree. However, every auditor has
22 a different approach on their methodology, their
23 approach to an audit, what type of documentation they
24 believe is -- is relevant to the case. I think that
25 some of that would be -- would be relevant. Yes, they
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1 would need to keep at least the basic set to support the
2 assessment, the basic set of records and communication
3 that would support their assessment.
4 Q. So if -- so if the auditor interviewed a third
5 party and somebody not the taxpayer and felt that the
6 information that was gained from that interview was
7 relevant to the audit, would you expect that there would
8 be a record of that communication in the audit file?
9 A. I would say that it would probably be at a
10 minimum in our update from -- from TRS that they had
11 done some type of communication regarding the TracFone
12 audit with.
13 Q. And wouldn't you want to be able to know -- I'm
14 sorry, go ahead and finish your answer.
15 A. Yeah, I would say that they would have some sort
16 of documentation regarding their communication with a
17 third party.
18 Q. Okay. You'd want know who they spoke to; right?
19 A. In most cases, yeah.
20 Q. Okay.
21 Would you expect that the... In connection with
22 performing the audit in a manner consistent with the
23 accepted professional practices, in would -- the
24 auditor, the outside auditor would include in its file
25 the record of any... communications it had with the
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1 taxpayer?
2 A. Yes, pertinent communication. There's obviously
3 some communication that's more transitory in nature
4 would -- would not need to be kept in an audit file.
5 Q. By the way, have you reviewed Mr. Crisp's
6 deposition in this case?
7 A. I have not.
8 Q. Okay.
9 In the course of your work on this -- on the --
10 on this audit, have you ever reviewed -- well, strike
11 that.
12 Prior to the time the assessment was issued, did
13 you ever review any -- review any of TRS's audit file?
14 A. Regarding the TracFone audit?
15 Q. Correct.
16 A. Audit file in its entirety?
17 Q. Well, any -- all or any portion of it.
18 A. There had been pieces that were reviewed. They
19 had sent some drafts, schedules along the way. They had
20 sent their monthly updates which really ended up being
21 similar to what I described as an audit blue where it
22 tracked their -- their work throughout the progress of
23 the audit, documented who they talked to and pertinent
24 emails and communications.
25 Q. Did you ever ask any questions about their
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1 methodology?
2 A. About their -- the final methodology?
3 Q. Any time they sent you documentation regarding
4 their methodology.
5 A. I don't believe that I had any questions about
6 their methodology. I may have discussed some of their
7 methodology with Jan at some point very briefly early on
8 in the -- in the 2017 period when I started getting
9 involved in this case.
10 Q. Is there a record of your conversation with Jan?
11 A. No, that would have been verbal.
12 Q. Did you ever review any emails between TRS and
13 Iwen Wang when you came on board and began working on
14 the TracFone audit?
15 A. I did not. Recently as part of the
16 records-gathering process, I -- I did see that there was
17 some communication with Iwen and TRS, some emails. I --
18 I did not read through those item by item.
19 Q. What purpose did you read them at all?
20 A. The purpose of ensuring that they were
21 responding records to the case.
22 Q. Oh, was it -- were you part of the -- were you
23 assigned the high great honor of having to collect stuff
24 for lawyers like me and Mr. Edwards?
25 A. Exactly. (Laughter).
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1 Q. We appreciate your efforts by the way.
2 A. (Laughter).
3 Q. All right.
4 Can you open... envelope D, D as in dog.
5 A. (Complies.)
6 Q. Do you have that in front of you, Mr. Malone?
7 A. Yes, I do.
8 Q. And is Exhibit D a -- excuse me, Exhibit D. Is
9 the document a one-page document I believe with the
10 Bates number 626?
11 A. It is, yes.
12 Q. Good. I believe it has previously been marked
13 as Exhibit 10. And does it appear to be a August 9th,
14 2016, email from TRS to Jan Hawn?
15 A. Yes.
16 Q. Have you seen that document before?
17 A. I have not.
18 Q. Now, you had not joined the City by 20-
19 [distorted audio]; is that right?
20 A. That is correct.
21 Q. And so this may -- my question simply was: It
22 says Mr. -- Mr. Crisp reports: We currently only have
23 one audit open for your city at this time, and that is
24 on TracFone, Wireless, Inc.
25 You see that?
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1 A. Uh-huh.
2 Q. Now, you mentioned that there was another audit
3 in -- going on with -- involving TRS when you were -- at
4 the time you joined; is that right?
5 A. That is correct.
6 Q. So it would appear that sometime between August
7 of 2016 and the time you came on board there was another
8 engagement of their office; is that correct?
9 A. No, the other audit I believe did not start
10 until 2018.
11 Q. Oh, okay.
12 A. I think is when we started the engagement on
13 that one.
14 Q. Okay. Are you able to tell me whether that was
15 a utility tax audit or some other kind of audit?
16 A. It was a utility tax.
17 Q. Okay.
18 Can you turn to envelope E as in elephant.
19 A. (Complies.)
20 Q. Do you have that in front of you, sir?
21 A. Yes, I do.
22 Q. Is the first page of that exhibit number 645?
23 A. Yes.
24 MR. DEGGINGER: And for the benefit of
25 counsel and the court reporter, I believe this had been
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1 previously marked as Exhibit 13.
2 BY MR. DEGGINGER:
3 Q. Have you seen this document before, sir?
4 A. Yes.
5 Q. Okay. And when did you see it for the first
6 time?
7 A. I believe I -- the first time I saw it was part
8 of -- well, I mean, I was included, so I would have seen
9 it July 2017.
10 Q. July 3rd?
11 A. July 3rd, 2017.
12 Q. Yeah. You were probably getting ready for your
13 July 4th barbecue.
14 A. (Laughter).
15 Q. So you were identified as the in-house tax
16 auditor in this email; is that right?
17 A. That is correct.
18 Q. Were you asked to do something with respect to
19 this audit in connection with this email that Ms. Hawn
20 sent to Mr. Crisp?
21 A. Not at this time, no. This was simply informing
22 Mr. Crisp that I was the in-house tax auditor and that
23 she wanted me to be included on the communications and
24 monthly status reports going forward.
25 Q. Okay. I notice at the bottom of the page it
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1 says there's a -- there's a -- in the string there's a
2 June 30th email. Do you see that?
3 A. Yes.
4 Q. And it states that they're providing a copy of
5 the tax schedules and methodology of how we did the
6 audit; is that right?
7 A. Yes.
8 Q. And so TRS is reporting here's the tax
9 schedules, here's the methodology, and then they
10 provided an explanation of the tax schedules and the
11 methodology. Do you see that?
12 A. Yes.
13 Q. And for some reason we failed to include all the
14 attachments, and I apologize for that. But for the
15 purposes of this question, I'm not sure you need to know
16 it.
17 What I'm trying to find out, sir, is were you
18 provided with the tax schedule and the methodology that
19 accompanied this email?
20 A. I believe I was included on -- I believe Jan
21 forwarded this email to me as part of, you know, telling
22 Mr. Crisp that I was the in-house tax auditor and to
23 include me on communications.
24 Q. Okay. So Jan forwarded it to you, and did you
25 review it, sir? What I mean "it", I'm referring to the
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1 methodology that was provided as well as the schedules.
2 A. I do not recall if I reviewed it at that time.
3 I -- I do know that after this date, after this July '17
4 schedules and methodology, that had been updated towards
5 the end of -- of 2017, and that's really a time when I
6 was more involved. This was one of our initial
7 communications letting TRS know that I -- I would be
8 involved in administering their contract.
9 Q. So you have no current recollection of whether
10 you reviewed the schedules and the methodology provided
11 with this email; is that right?
12 A. I do not remember if I reviewed on the July 2017
13 schedules, but I -- if I recall correctly, there were
14 schedules provided later on in 2017 --
15 Q. Okay.
16 A. -- with updated methodology which I believe
17 ended up being the final methodology for the audit.
18 Q. What had to be updated about the methodology?
19 A. So I believe there was some ZIP Code information
20 that they had incorrect in their initial draft, and I
21 believe there was also a revision because they had
22 previously talked about using usage instead of gross
23 revenues as part of their final assessment.
24 Q. Okay. Let's talk about those for a second. The
25 usage would be they wanted to assess tax based on the
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1 usage by the individual Renton -- Renton resident; is
2 that right?
3 A. I believe that's correct.
4 Q. And that is an incorrect application of the
5 utility tax, isn't it?
6 A. That is correct. And I believe that's why they
7 corrected it prior to issuing the final assessment. I
8 think that's pretty typical in audits that new
9 information becomes available or you discuss further
10 with other auditors or in-house counsel and determine
11 that your methodology or approach was not 100 percent
12 accurate prior to issuing a final assessment, at which
13 time you would correct, or it may come up during a
14 conversation with -- with the taxpayer that there's new
15 information or, you know, they -- they have a new
16 approach that you were unaware of that you need to
17 utilize and update your schedules. I think that is a
18 very common practice to update schedules through --
19 throughout an audit as new information becomes
20 available.
21 Q. Well, let -- let's talk about that, because TRS
22 was hired to perform a utility tax audit; correct?
23 A. Correct.
24 Q. So they're a consultant performing a utility
25 tax; right?
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1 A. That is correct.
2 Q. If you're a consultant, an auditor consultant
3 hired to perform a utility tax audit, isn't it pretty
4 important that you know what the measure of tax is and
5 what the basis of the tax is?
6 A. Yeah, I would say that is important, but --
7 Q. Pretty fundamental, isn't it, to performing the
8 work, isn't it?
9 A. I would say it is fundamental, but, again, as
10 new information becomes available, and I think almost
11 every audit is -- is part of a -- a learning process
12 even for a seasoned auditor, every company has different
13 sets of records. The basis may -- may be the same, the
14 approach needed, especially when involving records that
15 are unavailable and high levels of estimation are used,
16 there -- there is times when you're going to have to
17 adjust and do something that you may have not had to do
18 in any prior audits.
19 Q. Isn't the... the manner in which the tax is
20 applied a matter of state law?
21 A. It is, yes.
22 Q. So it doesn't matter what information you
23 necessarily get from the taxpayer. The state law
24 governs what the tax is due on; right?
25 A. Yes, to a -- to a degree. I mean --
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1 Q. Well --
2 A. -- determining what the taxable income is in a
3 particular jurisdiction, that's where estimation comes
4 into play. I think that the -- what is subject to the
5 tax, that -- that is state law. But in determining what
6 that portion is applicable to the specific jurisdiction,
7 that's where some more flexibility and room for
8 estimation -- I think if you've been to any audit
9 training or even, you know, state tax training, it's a
10 pretty common practice to know that, you know, five
11 different auditors can audit one company and come up
12 with five different taxable revenues depending on what
13 records are available.
14 Q. That may be, but the fact of the matter is, sir,
15 isn't it true that under state law the utility tax is a
16 tax on gross receipts, not usage?
17 A. That is correct.
18 Q. And isn't that a basic and fundamental premise
19 that has to be utilized in connection with doing a
20 utility tax audit?
21 A. I would say that is correct, and that is how the
22 assessment was issued.
23 Q. But it wasn't originally prepared that way by
24 your outside consultant, was it?
25 A. It was not.
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1 Q. Okay. Why don't we take a break. We've been
2 going at this for about an hour and a half and,
3 Mr. Malone, you've been extraordinarily patient. Why
4 don't we take ten minutes.
5 (A break was taken
6 from 10:19 a.m. to 10:31 a.m.)
7 MR. DEGGINGER: We're back on the record.
8 BY MR. DEGGINGER:
9 Q. Mr. Malone, I think we were looking at the
10 exhibit, I think it's marked 13. And I wanted to ask
11 you just a couple more questions about it. One is, if
12 you look at the top of the first page of the exhibit,
13 which is page 645. Do you see that, sir?
14 A. Yes.
15 Q. Okay. I notice your name appears at the top.
16 A. Yes.
17 Q. That also I think was the case with the previous
18 exhibit. Why is that?
19 A. Because I was the one that was pulling together
20 these records.
21 Q. Okay. All right.
22 If you look also at the second page of -- of the
23 exhibit, there's a statement about the middle of the
24 page in a paragraph, it says, "Also, this audit stops in
25 May 2013"?
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1 A. Yes.
2 Q. And did you have any discussions with the --
3 with TRS about doing a second audit?
4 A. There has -- there was and has been discussion
5 about it. We decided I believe in either 2017 or 2018
6 to keep -- I know TracFone wanted to keep the original
7 audit period, and I believe that we told TRS just to
8 move forward with just the audit 1, which is the audit
9 period in question.
10 Q. Okay.
11 Could you move to the next envelope, envelope F.
12 A. (Complies.)
13 Q. And do you have that document from envelope F in
14 front of you, sir?
15 A. Yes, I do.
16 Q. And is it a document with the first page number
17 of 653?
18 A. It is.
19 Q. I believe it's previously been marked as Exhibit
20 14, 1-4. And does your name appear in a email dated
21 Friday, July 28th, 2017?
22 A. Yes, it does.
23 Q. What was going on with respect to the audit at
24 this point in time, sir?
25 A. This is shortly after the last email after the
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1 first draft of schedules and methodology was provided.
2 I believe during this time is when TRS was reaching out
3 to TracFone, specifically Mr. Ford, to discuss the
4 methodology and -- and their preliminary schedules.
5 Q. Okay. And is... TRS reporting that Mr. Ford
6 said he had some questions about methodology and asked
7 to have a meeting with the City?
8 A. I believe that is the case. I don't know if
9 he's asking for a meeting specifically. Oh, yes, he is.
10 Would like to have a meeting, yes, I see that.
11 Q. Is that something that taxpayers who are
12 involved in an audit frequently request, opportunity to
13 meet with the City to discuss questions or issues?
14 A. Not necessarily with the City specifically, but
15 with the auditor, whoever is conducting the audit, I
16 would say that that is very typical in a typical audit.
17 Q. It's a reasonable thing for a taxpayer to ask
18 for?
19 A. Yes.
20 Q. But Mr. Crisp suggested that there not be a
21 meeting; is that correct? He recommended against that,
22 didn't he?
23 A. Yes.
24 Q. He asked what -- he wanted to know what you
25 thought, you and Jan I presume, Jan Hawn thought. What
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1 was your response to him, sir?
2 A. In -- in this case it looks like Jan responded
3 that she was fine with the proposed approach.
4 Q. What was the proposed approach? Not to meet
5 with the taxpayer?
6 A. That is correct.
7 Q. If there had been a meeting, might there been an
8 opportunity to identify any issues with the methodology
9 that the taxpayers had found?
10 MS. SAND: Objection. Calls for
11 speculation.
12 You can go ahead and answer, Nate.
13 THE WITNESS: I think that that is possible.
14 BY MR. DEGGINGER:
15 Q. Uh-huh.
16 A. I think in this case, just based on his email,
17 he felt that questions could be asked electronically,
18 and if there was a need for a meeting later, they would
19 consider it at that time. I think that's -- that's just
20 what this email's statement is.
21 Q. Okay. So the bottom line was the taxpayer's
22 request for a meeting was -- was denied; correct?
23 A. To me it appears that he felt that it was
24 unnecessary at this time to -- to do a formal meeting
25 and chose to do electronic email communication at that
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1 time.
2 Q. That -- my question was more specific. The
3 taxpayer's request for a meeting was denied; correct?
4 A. I believe so. I don't have the response in
5 front of me that says, We refuse to meet with you, but
6 that appears to be what his proposed approach was.
7 Q. Okay. Let's move on to envelope G if we could.
8 A. (Complies.)
9 Q. Do you have that in front of you, Mr. Malone?
10 A. I do.
11 Q. I believe exhibit -- this exhibit is -- was
12 previously marked as Exhibit 16, 1-6. And just to
13 orient ourselves, is the first page number of the
14 Exhibit 665?
15 A. Yes.
16 Q. And is the last page -- there's a 676 I believe.
17 A. That is correct.
18 Q. Okay. Just wanted to make sure we're all
19 reading the same document.
20 This is an email dated August 8th, 2017; right?
21 A. It is, yes.
22 Q. And it appears to be containing both an August
23 7th email from Jan Hawn to Tamara Crisp and you, and an
24 August 8th email from TRS to you and Jan; is that right?
25 A. Yes.
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1 Q. Okay. So working backwards, you know, with
2 these email strings you sort of have to do that I guess.
3 A. Sure.
4 Q. It sounds as though TRS was unsure about whether
5 it was capturing the population of the city in the audit
6 correctly. Is that a reasonable way of summarizing
7 what's going on here?
8 A. That'd be -- appears to be so, yes.
9 Q. Okay.
10 What did you understand the problem to be?
11 A. Well, during the audit period, Renton had
12 undergone significant annexations, rather large
13 annexations which changed the population considerably.
14 And they did not appear to account for that correctly,
15 because they were using information that did not account
16 for those annexations originally.
17 Q. And I see at the bottom of page 665 an email
18 from Jan Hawn to Tamara saying that, "The population
19 growth over the years" -- I presume that's the
20 population of the city -- "can be found in Table 5 of
21 our Comprehensive Annual Financial Report," and there's
22 a link. Do you see that?
23 A. Yes.
24 Q. How would -- how would we find that link?
25 A. This link I'm assuming is to our Comprehensive
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1 Annual Financial Report and that would be available on
2 our public external website for you to review.
3 Q. We've not been able to find it.
4 A. Okay. I -- we could -- we could pull it up and
5 send it to you.
6 Q. That'd be great, because we just don't have that
7 data that was referenced in this email. And it's not
8 available online to mere mortals such as us, so that
9 would be great. Do that with Ms. Sand and get that to
10 us, that'd be great.
11 Looking at the second paragraph of the August
12 8th email from Tamara Crisp. She says that, "The
13 estimates that this zip code site give us are a bit
14 lower for census years than census numbers, so the
15 advantage is on the city's side." What do you
16 understand her to be saying?
17 A. I believe that because there was estimates used
18 on the ZIP Code population, that in this sentence I
19 believe she is saying that the... I believe she must be
20 saying that the total population on the ZIP Code site is
21 lower which could make the population portion inside the
22 city of Renton larger.
23 Q. What would affect -- what effect would that have
24 on the assessment?
25 A. Because TracFone did not keep adequate records,
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1 they had to rely on population percentage information to
2 make the assessment.
3 Q. What was inadequate about TracFone's records?
4 A. They did not track where their network telephone
5 service was being sold to or used from. There -- the
6 only information that they had available was that they
7 had -- for the direct sales, they had broken out by ZIP
8 Code of primary use.
9 Q. So they just kept different records?
10 A. Correct. They did not have what was inside city
11 of Renton specifically. They had it by ZIP Code.
12 Q. Uh-huh.
13 A. And as you know, in many cities throughout
14 Washington, ZIP Code could be partially in, partially
15 out depending on -- on where it's at.
16 Q. What -- okay. And what if you undercounted the
17 number of Renton residents in a ZIP Code, what effect
18 would that have on the tax that was being calculated?
19 A. If you undercounted the number of taxpayers --
20 Q. Yeah.
21 A. -- in that ZIP Code versus the city population?
22 That could potentially -- I mean, it would increase
23 the -- the ratio which would result in higher taxable
24 receipts for City of Renton.
25 Q. So what she's saying is by -- because of the --
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1 the census -- the -- because the ZIP Code calculation is
2 lower, that's to the City's advantage?
3 A. Correct.
4 Q. And to the disadvantage of the taxpayer?
5 A. Correct.
6 Q. If you turn to the third page of the exhibit,
7 it's number 667. It's titled TracFone Audit
8 Methodology?
9 A. Yes.
10 Q. Did you review the methodology that was provided
11 with this email?
12 A. I did.
13 Q. Did you notice in the second paragraph it says:
14 Why sales and not usage is used to the -- in the
15 estimate?
16 A. Yes.
17 Q. Did you discuss with TRS that usage is not the
18 methodology for applying the utility tax?
19 A. We did not that I'm aware of.
20 Q. Did you ever discuss with Jan Hawn that the
21 consultant wasn't using the correct methodology for
22 applying the tax?
23 A. I do not believe we discussed that at this time.
24 Q. Did you review -- also I guess starting at page
25 670, there's a very poorly copied printout of a -- I
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1 believe the Excel spreadsheet that is referenced as an
2 attachment. Do you see that?
3 A. Yes.
4 Q. Did you review the Excel spreadsheet when it was
5 provided to the City?
6 A. I do not believe that I reviewed at this time.
7 As -- as you can see on the first page, Jan was still
8 heavily involved in the communications with TRS at this
9 time. I -- I may have looked at it. I do not recall in
10 what level of detail. And I know that this was not the
11 final... the final schedules that were utilized. Again,
12 this is the -- the ones that were based on the incorrect
13 method with the usage prior to them correcting their
14 method and issuing the final assessment which was
15 correct.
16 Q. Do you have a -- as you sit here today, do you
17 have a recollection of opening the Excel spreadsheet
18 that came with the final assessment?
19 A. I don't have a specific recollection, but I'm
20 sure that I did.
21 Q. Ever have any difficulty opening the Excel
22 spreadsheet?
23 A. I do recall -- we were able to open the Excel
24 spreadsheet. There -- because of the system that they
25 were using, there's usually some type of error message
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1 displayed initially to recover the data, but it didn't
2 appear that any data was missing from the spreadsheet.
3 Q. Did you review the calculations of the
4 population and the ratios that were used in the
5 methodology?
6 A. At this time I -- I may have glanced at them
7 briefly. We -- we didn't review necessarily line by
8 line the schedules at this point. At least I -- I did
9 not line by line review their calculation.
10 Q. Did you review line by line the calculation of
11 the final estimates before the assessment was sent to
12 the taxpayer?
13 A. I reviewed it in -- in much greater detail than
14 the preliminary. I -- I would say that I may have not
15 clicked into every single box to -- to verify the
16 formula, but I did go through the calculation and ensure
17 that it was sound and I understood what -- what they
18 were using.
19 Q. Okay. Can you -- can you open up envelope I?
20 A. (Complies.)
21 Q. If you wouldn't mind, Mr. Malone, just let me
22 know when you're ready.
23 A. Okay.
24 Q. Okay. Thank you.
25 Envelope I, I believe, was previously marked as
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1 Exhibit 22. Is Exhibit 22 one of the monthly reports
2 that the City would receive from TRS?
3 A. It is, yes.
4 Q. And this one's dated December 6th, 2017; right?
5 A. That's correct.
6 Q. Okay. I got a couple questions for you. First
7 of all it says, there's a title TracFone Wireless, Inc.
8 Audit 1 and Audit 2. You see that?
9 A. I do.
10 Q. What is audit 2?
11 A. That refers to the audit period after the
12 conclusion of the audit period in question.
13 Q. But there was no audit period in question --
14 after the one in question; correct?
15 A. There is outstanding periods that are in
16 question after the audit period.
17 Q. Well, the audit period -- what -- when is your
18 understanding of the audit period?
19 A. Through 2013.
20 Q. Okay. And TRS was not engaged to perform a
21 second audit; correct?
22 A. Not at this time.
23 Q. Have they been engaged since then?
24 A. I do not believe so.
25 Q. Okay. So when it says audit 2, is that a -- is
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1 that an erroneous statement?
2 A. I believe that their hope was to have two
3 separate audits since TracFone did not want to extend
4 the initial audit period up through current. I think
5 that that was what their -- their hope was, was to have
6 two separate audits for the audit period through 2013
7 and then up through current.
8 Q. So in this email or in this report they are
9 stating that TRS has discovered there needs to be an
10 adjustment to the methodology. You see that?
11 A. Yes.
12 Q. They -- they say that they have taken the
13 assertion out that the tax is based on usage.
14 A. Yes.
15 Q. And they're saying -- what was the reason they
16 gave for -- for the change?
17 A. (Reviews exhibit.)
18 They have seen that that is the more correct
19 method for estimation per the codes.
20 Q. Okay. So how long had TRS been engaged by the
21 City in working on this audit when this email -- when
22 this report came?
23 A. How long since they had originally started?
24 Q. Yes, sir.
25 A. I -- I mean, it was several years before I
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1 joined in 2017.
2 Q. Wow. So they didn't discover this methodology
3 error until... several years after they had begun the
4 work; correct?
5 A. That is correct. I believe it was actually
6 brought up to their attention by Mr. Edwards.
7 Q. How do you know that?
8 A. I believe that was in communication somewhere
9 along the way in one of the monthly reports or in an
10 email --
11 Q. Uh-huh.
12 A. -- or on the phone.
13 Q. I suppose if there had been a meeting with the
14 taxpayer ahead of that, they would have been able to
15 ferret that out earlier; right?
16 A. I mean, it's possible.
17 Q. Sure.
18 Looking down the paragraph to the last paragraph
19 in the -- well, the last written paragraph that we can
20 see in the report, it says: TRS is still -- still has
21 the first audit in a hold pattern awaiting further
22 developments, and will contact the City of Renton as
23 soon as we believe that it is a good time to move
24 forward.
25 What does that refer to?
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1 A. So I believe at this time, this message I think
2 is copy pasted on -- on several of their monthly reports
3 during the end of '17 through '18. I think a few of
4 them had this message on there. And from my
5 understanding, they were awaiting some litigation
6 ongoing in other jurisdictions.
7 Q. For what purpose?
8 A. To ensure that their assessment was sound and
9 accurate.
10 Q. So TRS had performed the audit and revised their
11 methodology, had prepared schedules and were awaiting
12 the results of litigation in another state to determine
13 whether their methodology was correct or whether
14 there -- or what?
15 A. I -- I don't know if it was in another state. I
16 think it may have been in another state, but I think
17 that their main concern was TracFone has a -- quite a
18 long record of -- of litigation, and they wanted to
19 ensure that their audit was sound and accurate and there
20 was no pending litigation that may change the outcome of
21 this -- this audit.
22 Q. Did they specifically tell you that there was
23 pending litigation that may change the result of the
24 audit?
25 A. I believe the only case that was mentioned was
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1 Springfield, City of Springfield.
2 Q. Springfield, Missouri?
3 A. Yes.
4 Q. What impact would that case have on the outcome
5 of the audit?
6 A. I think what they were thinking in terms of how
7 that could impact the audit was that there might be a
8 more clear court decision on whether or not TracFone was
9 a telephone business. And I think also that case -- I
10 have not reviewed that case, but I believe that case
11 also may have been addressing the indirect sales which
12 they knew was going to be a considerate -- considerable
13 portion of this audit assessment.
14 Q. Wholesale sales?
15 A. The indirect sales, yes.
16 Q. Did you find out later on that this -- in that
17 case that wholesale sales were deemed not subject to
18 utility tax?
19 A. I believe that he did find that out upon that
20 case conclusion. But because the City of Springfield
21 had a different statute and code than City of Renton and
22 Washington State, that case did not necessarily give us
23 a good answer as to whether or not this was taxable.
24 And based on our codes and statutes, the direct and
25 indirect sales appear to be taxable and subject to the
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1 City of Renton utility tax.
2 Q. Okay. But let's just be clear here timewise.
3 December 6th, 2017, is when this [distorted audio] city;
4 right?
5 A. Correct.
6 Q. At that time was the audit done? Was it
7 complete?
8 A. I -- I believe it was primarily done to -- to
9 the best of my knowledge.
10 Q. Okay. So it could have been sent out in
11 December of 2017?
12 A. I think possibly. I don't know if they had, you
13 know, further documentation to gather or, you know,
14 anything along those lines. I -- I don't know in terms
15 of, like, the background --
16 Q. Well --
17 A. -- pieces of it, but it may have been ready to
18 send for an assessment during that time.
19 Q. So if it was ready to send, the only holdup was
20 waiting to see how these -- how this court case turned
21 out?
22 A. I believe so, yes.
23 Q. And in between the time that the assessment was
24 ready to send and the -- and it was sent -- it was sent
25 in February of 2019; correct?
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1 A. Correct.
2 Q. Well over a year later; right?
3 A. Correct.
4 Q. Interest is accruing that whole time; correct?
5 A. Correct.
6 Q. And the City expected TracFone to pay that
7 interest; right?
8 A. Correct, yes.
9 Q. So the assessment would have been less if the
10 assessment had been sent out in December of 2017; right?
11 A. Yeah, it would have had less interest accrued on
12 it. And the fact of the matter is, is the tax --
13 taxable receipts correct. I -- I think that the
14 interest portion, while there may have been additional
15 interest accrued, that the tax portion is really what's
16 at question here. I think if the taxpayer were to, you
17 know, pay the tax, the City would work with the taxpayer
18 in terms of, you know, what can we do regarding the
19 interest piece of it given that the assessment may have
20 been ready towards the end of 2017.
21 Q. That... proposal was never forwarded to TracFone
22 in December of 2017, was it?
23 A. It was not. During several meetings with
24 TracFone, there was no indication that TracFone or its
25 representatives intended on paying the tax in its
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1 entirety.
2 Q. I'm asking you what happened in 2017.
3 A. Okay.
4 Q. At that point the only request that TracFone had
5 to meet with the City was -- was rejected at that point;
6 right?
7 A. Correct.
8 Q. Okay. Let's move on to exhibit -- to the next
9 exhibit, which is J.
10 A. (Complies.)
11 Q. Do you have that, Mr. Malone?
12 A. I do.
13 Q. And this is a document numbered 46 -- starting
14 off with 461; is that right?
15 A. Correct.
16 Q. I believe it's been previously marked as Exhibit
17 24, 2-4. And is this the -- a contract with TRS and the
18 City of Renton dated January 1, 2018?
19 A. It is.
20 Q. And I believe you testified previously you were
21 involved in the preparation of this document?
22 A. Yes, to some degree.
23 Q. And what specifically did you do on this
24 contract?
25 A. I worked with our legal counsel to ensure that
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1 there was no issues with the contract, and I also
2 prepared, like, our contract checklist to vet through
3 our contracting policy procedures, and would have --
4 that would have been routed by the City Clerk to the
5 appropriate persons to get their signatures. I also
6 would have worked with -- with legal to get legal
7 approval. Would have worked with risk management to get
8 their approval as well.
9 Q. Okay. Maybe first you can explain to me why was
10 a new contract required in January of 2018?
11 A. So I kind of had touched on this prior, but
12 basically prior to my arrival at the City, we were --
13 Jan and I, I think, both were not aware of what policies
14 and procedures were done in place regarding the TRS
15 contract. And at this time I knew that we needed to get
16 this routed correctly and get it recorded as a official
17 contract with the City Clerk's Office. There was no
18 record with City Clerk's Office prior to this contract.
19 So in 2018 we wanted to get all of those little items
20 cleaned up and get the proper approval and policy
21 procedures followed to get this contract in place.
22 Q. So are you saying that the first contract, the
23 one that we looked at earlier, Exhibit 1, was not an
24 official -- did not go through official channels to be
25 executed?
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1 A. I don't know that it did not go through official
2 channels, but we could not find electronic record of it
3 with our City Clerk, so I don't know. There may have
4 been a hard copy because it was done quite some time
5 ago. It may have been before the City was keeping
6 contracts electronically. And like I said, I don't know
7 during that time what the correct contracting policy or
8 procedures were prior to my time at the City.
9 Q. Who would know that?
10 A. I... don't know. I would think that the City
11 contracting policies would be on record somewhere with
12 the City.
13 (Inaudible due to crosstalk.)
14 THE WITNESS: -- the prior ones I think that
15 is, you know.
16 BY MR. DEGGINGER:
17 Q. Well, it sounds like you and Jan were concerned
18 that this original contract with TRS did not go through
19 the proper channels to be approved and executed; is that
20 correct?
21 A. I don't think that we were concerned about
22 whether or not it went through the proper channels. Our
23 concern was we needed to get it officially on file with
24 the City Clerk's Office and run through our current
25 contracting policy. So we wanted to follow the current
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1 policy that we had in place. We weren't sure --
2 Q. And the policy -- go ahead.
3 A. And we weren't sure what the policy had been
4 before or if it was followed or what the procedures were
5 done with that original contract.
6 Q. Did you ask the City Clerk?
7 A. No, I did not.
8 Q. Did -- do you know if Jan did?
9 A. I don't know.
10 Q. So it's January of 2018. You have a audit
11 that's been done, it's ready to go, waiting developments
12 as we have just talked about a few moments ago. And
13 then this concern arises about whether this contract
14 was -- is -- is -- is -- something about there's a
15 concern about the procedural status of this contract; is
16 that right?
17 A. I would say that there's administrative
18 processes that we needed to follow to get this contract
19 renewed, and because we did not have the original on
20 file with the City Clerk's Office, we went the route of
21 making a new agreement with our current legal advice on
22 what the contract language should include and route it
23 through them through approval and all of that.
24 Q. Well, okay. I'm still a bit confused so I'll
25 keep asking questions. I notice that this contract,
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1 Exhibit 20 -- whatever it is -- 44 is signed on behalf
2 of the City by the mayor; right?
3 A. That's correct.
4 Q. Okay. Exhibit 1 that we looked at earlier, was
5 that signed by the mayor?
6 A. I do not believe so. I believe it was signed by
7 Iwen Wang.
8 Q. It was signed by Iwen Wang.
9 Are all contracts of this kind supposed to be
10 signed by the mayor?
11 A. No, not necessarily. Again that kind of depends
12 on those threshold levels and what the anticipated
13 contract amount is. That determines who has to sign it.
14 In this case it rose to a level that the mayor would
15 have to sign it, but there is cases when -- when Jan
16 could sign contracts.
17 Q. How did you calculate what the threshold level
18 was for this contingent fee contract?
19 A. It was an estimate.
20 Q. Were there any concerns raised by TRS regarding
21 the terms of this new contract?
22 A. I don't believe so. Not that I can recall
23 specifically.
24 Q. Were provisions of the prior contract
25 incorporated by reference into this contract?
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1 A. I believe so. I think that the scope of work
2 remained the same, and I believe the compensation,
3 Exhibit B, remained the same.
4 Q. I noticed that on page 463 under paragraph 7
5 there's a topic called Records Maintenance. You see
6 that?
7 A. Yes.
8 Q. And it says in part: The consultants shall
9 maintain accounts and records, which properly reflect
10 all work provided in the performance of this agreement.
11 Do you know whether you asked TRS whether it was
12 maintaining all of its records in -- regarding the work
13 that it had performed on the audit at this time?
14 A. I don't think that we specifically asked about
15 this question. I would hope as a consultant that as
16 part of their review in a contract that they would agree
17 to the terms stipulated in -- in the contract.
18 Q. Was there any memorandum or email prepared for
19 the mayor to explain why he was being asked to sign this
20 contract at the time that it was prepared?
21 A. Not that I'm aware of.
22 Q. Was any memo prepared -- when I say "memo",
23 email, some sort of written communication describing
24 what this contract was all about to anybody that had to
25 review it through your contracting channels at the City
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1 of Renton?
2 A. Yes, absolutely. Particularly our legal counsel
3 was definitely -- would have been involved heavily.
4 Q. So do you recall preparing something for your
5 legal counsel to review?
6 A. I do not recall, like, necessarily creating any
7 documents for them to review, but I -- I know we had
8 discussed this contract in-person.
9 Q. Who helped you with that? Which attorney helped
10 you with that?
11 A. That would have been Leslie Clark.
12 Q. Okay.
13 Have you ever asked to see TRS's audit blue for
14 this particular audit?
15 A. I did not.
16 Q. You ever asked if they maintained an audit blue
17 for this audit?
18 A. I did not.
19 Q. Can you move on to K.
20 A. Move on to what?
21 Q. Envelope K.
22 A. K?
23 (Complies.)
24 Okay.
25 Q. This is a one-page document, number 138. I
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1 believe it's Exhibit 27 previously.
2 Now we're into June, about six months after the
3 last report from TRS that we looked at. And it's saying
4 that it hopes to hear something in June concerning the
5 legal issues that will affect our audit.
6 Do you have any question -- did you talk to TRS
7 about that?
8 A. No.
9 Q. Is it normal to wait this long after an audit
10 was prepared to send out?
11 A. I wouldn't say that it's normal, but there are
12 certain times where there might be pending litigation
13 that's going to affect your audit that you might hold an
14 audit for a period of time depending on -- on the
15 circumstances. But I wouldn't say it's standard
16 practice.
17 Q. If you go to L, envelope L.
18 A. (Complies.)
19 Q. Do you have that, sir?
20 A. Yes, I do.
21 Q. Is the first page 718?
22 A. Yes.
23 Q. I believe it was previously marked as Exhibit
24 either 28 or 29. And I apologize, it's a little bit
25 confusing.
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1 I notice at the bottom of the page is an email
2 from you to TRS asking for the objections that TracFone
3 has and your response. Can you describe for me what you
4 were seeking and why at that time you were looking for
5 it?
6 A. Well, I wanted to get an update on the audit and
7 I wanted to know what points TracFone was making in
8 regards to the audit and why they disagreed with the
9 results, if they did. Which I think -- I believe at
10 this time we knew that there was going to be objections.
11 And I wanted to know his response as to why or why those
12 objections were incorrect or why TracFone would be
13 subject to the tax.
14 Q. And did you receive a response?
15 A. I believe so.
16 Q. Take a -- why don't you grab envelope M.
17 A. (Complies.)
18 Q. You have that?
19 A. I do.
20 Q. And I believe this is -- this is an exhibit that
21 doesn't have Bates numbers for some reason; is that
22 right?
23 A. Yes.
24 Q. Okay. Sorry about that. I don't know why it
25 got produced that way, but it did.
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1 MR. EDWARDS: That's because that's how the
2 City produced it to us.
3 MR. DEGGINGER: I think that's correct.
4 BY MR. DEGGINGER:
5 Q. So, Mr. Malone, did you review this document?
6 A. Yes.
7 Q. Did you have any questions about it when you
8 received it?
9 A. I don't think I asked any questions right away.
10 I wanted to kind of take some time to read through it.
11 I mean, I see that there is some... There is some --
12 well, there's one RCW reference that's incorrect, but --
13 Q. What's incorrect?
14 A. The RCW 35.21 -- oh, no, that's correct. Sorry,
15 I was misreading that. I thought that he was referring
16 to R 42. Impose the tax on tel- -- telephone businesses
17 from RCW 35A.
18 Q. So -- so the City doesn't have inherent power to
19 impose a utility tax, does it?
20 MS. SAND: Object to the extent it calls for
21 a legal conclusion.
22 BY MR. DEGGINGER:
23 Q. Let me ask it this way.
24 MS. SAND: Go ahead and answer.
25 BY MR. DEGGINGER:
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1 Q. It's your understanding, Mr. Malone, that the
2 City doesn't have inherent power to levy a utility tax?
3 MS. SAND: Same objection.
4 You can go ahead and answer, Nate.
5 MR. DEGGINGER: I'm asking for his
6 understanding, Counsel.
7 THE WITNESS: I believe that we do have the
8 authority to tax based on RCW 35A.82.060.
9 BY MR. DEGGINGER:
10 Q. Okay. So the authority the City has is based
11 upon authority granted by the State to cities; correct?
12 A. That is correct.
13 Q. And so the limits of your power to tax, the
14 City's power to tax, not yours, is based on what state
15 law says; correct?
16 A. That's correct.
17 Q. And you said RC -- you were very specific, RCW
18 35A.82.060; right?
19 A. Yes, that's correct.
20 Q. That's one of the statutes you reviewed in
21 preparation for your deposition today; is that right?
22 A. That is correct.
23 Q. Okay.
24 Did you discuss the scope of what the City is
25 allowed to do in terms of utility tax with TracFone --
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1 excuse me, not with TracFone -- with TRS once you
2 received this information from them?
3 A. I don't believe we had a direct discussion at
4 this time, no.
5 Q. Did you have any -- did you ask any questions,
6 follow-up questions of TRS following this receipt of
7 this document?
8 A. I don't recall specifically if I asked any
9 specific questions. I may have at some point. I don't
10 recall exactly though.
11 Q. What is your understanding of what the
12 legislature has seen fit to allow cities to tax to apply
13 utility tax to?
14 A. In terms of -- are we specifically referring to
15 what authority RCW 35A.82.060 grants the City?
16 Q. If that's what you believe is the grant of
17 authority, yeah.
18 A. So I think that that -- that's what grants us
19 the authority to tax the gross receipts of a telephone
20 business. There are some exclusions in that RCW.
21 Q. Okay. We'll talk about that in a second.
22 A. Okay.
23 Q. But RCW 35A.82.060 doesn't just address
24 telephone businesses, does it?
25 A. I believe it does, if I recall correctly.
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1 Q. Are there other statutes that grant the City
2 authority to issue -- to impose utility tax on other
3 businesses?
4 A. I believe there is.
5 Q. Okay.
6 A. But I don't know the statute off the top of my
7 head.
8 Q. All right. Well, let's do this. You're the tax
9 manager. You probably know who is paying utility tax at
10 the state of -- in the City of Renton; right?
11 A. Yes.
12 Q. Okay. So is utility tax paid by the company
13 that provides electric service?
14 A. Yes.
15 Q. And gas service?
16 A. Yes.
17 Q. How about water?
18 A. Yes.
19 Q. And do all those -- all those businesses have
20 franchises with the City?
21 A. Not all of them, no.
22 Q. I suppose that the City doesn't have a franchise
23 for its water utility?
24 A. That is partially correct.
25 Q. What's -- what's -- what's incorrect about it?
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1 A. What's incorrect about -- well, we don't have
2 franchise agreements in place with water districts that
3 operate within city limits at this time, so those people
4 would -- they could be subject to the -- the utility
5 tax --
6 Q. Okay.
7 A. -- that we do not have a franchise agreement
8 with.
9 Q. All right. Okay.
10 And then you mentioned... We'll talk about that
11 in a second.
12 I'm just trying to find the next document I want
13 to use here.
14 Why don't we have you open envelope T as in Tom.
15 A. (Complies.)
16 Q. You have that, Mr. Malone?
17 A. I do.
18 Q. And is that a document that I believe was
19 previously identified as Exhibit 56, and is it -- I
20 don't know if it's Exhibit 56. I don't think it is.
21 I'm not sure. Does it contain a series of state
22 statutes?
23 A. It does.
24 Q. Okay. And the reason I'm asking you to look at
25 it now is because I was going to ask you some questions
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1 about RCW 35A.82.060 that you have mentioned previously,
2 which I believe is several pages into this document, if
3 you can find it.
4 A. Yes.
5 Q. It might be easier to have you looking at the
6 statute. This will be the open-book part of this test.
7 A. (Laughter).
8 Q. So I believe you said earlier that the
9 legislature had authorized cities to impose the utility
10 taxes on the business of engaging in the telephone
11 business or words to that effect; is that right?
12 A. Yes, that's correct.
13 Q. What constitutes the business activity of
14 engaging in a telephone business?
15 MS. SAND: Object to the extent it calls for
16 a legal conclusion.
17 Go ahead and answer, Nate.
18 BY MR. DEGGINGER:
19 Q. Let me -- let me -- let me restate the question.
20 What do you understand constitutes the business
21 activity of engaging in the telephone business as that
22 terms is found in the statute? I'm asking for your
23 understanding as the tax manager and person who is
24 involved in collecting this tax from the good people of
25 the City of Renton.
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1 A. Sure. So in order to determine what a telephone
2 business is, we would need to go to 82 -- RCW 82.16.010,
3 which contains the definitions that are relevant,
4 specifically the definition of telephone business.
5 Telephone business is the providing of network
6 telephone service, without reading the statute in front
7 of me, as something along those lines. And network
8 telephone service is where the providing of access to a
9 telephone network, and it goes on from there. But that
10 is the piece that's important is the providing of access
11 to the -- the telephone network.
12 Q. So let's -- let's -- let's -- let's unpack that.
13 You were well trained on that answer --
14 A. (Laughter).
15 Q. -- and I want to unpack it and understand your
16 testimony; okay?
17 A. Okay.
18 MS. SAND: Excuse me. Would it be possible
19 if you could turn to that page? It's in the same
20 exhibit.
21 MR. DEGGINGER: Well, I'm not going to --
22 let me direct the witness to what pages to look at,
23 Counsel. I'm not trying to trip him up. But I do need
24 to understand his testimony.
25 MS. SAND: Just making sure that open-book
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1 exam is in fact open-book.
2 MR. DEGGINGER: It will be, but let me
3 direct the witness's attention to specific statutes at
4 specific times. He's just recited a number of things,
5 so he's obviously well prepared for these questions,
6 Counsel.
7 BY MR. DEGGINGER:
8 Q. Now, we -- my -- my first question was: What
9 does engaging in a telephone business mean? And your
10 answer was: Providing network telephone service; is
11 that right?
12 A. It would be the -- the definition, yeah, that is
13 telephone business which states something along the
14 lines of providing network telephone service.
15 Q. Okay.
16 A. Without reading it verbatim.
17 Q. Yeah. Okay. And what is network telephone --
18 what's your understanding of what "network telephone"
19 is?
20 A. Network telephone service, again without reading
21 that definition verbatim, is providing access to the
22 local telephone network through any means.
23 Q. Okay. So if I hand you my cellphone, my iPhone
24 right here, so you can make a call, am I then providing
25 network telephone service?
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1 A. No.
2 Q. I'm providing you access to -- am I providing
3 you access to a telephone network?
4 A. I believe -- I mean, you are, but not in the
5 terms that are within the definition. I mean --
6 Q. Okay. Well, take a look at the definition.
7 (Inaudible due to crosstalk.)
8 BY MR. DEGGINGER:
9 Q. Counsel is correct, it's in this exhibit. It's
10 about four or five pages along.
11 A. (Reviews exhibit.)
12 Q. Are you there?
13 A. Yes, I am.
14 Q. Okay. So you have RCW 82.16.010 in front of
15 you?
16 A. Yes.
17 Q. Right. Okay. And you were -- you had
18 referenced that in one of your prior answers?
19 A. Yes.
20 Q. So my -- my question is: "Network telephone
21 service" is a fairly long definition and it involves a
22 lot of things. You said providing access to a telephone
23 network?
24 A. Uh-huh.
25 Q. When I offered to hand you my cellphone to make
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1 a phone call to provide access to a telephone network,
2 you said that was not network [inaudible]; right?
3 A. I would think we'd have to dig into this
4 definition further.
5 Q. Okay. Where would we -- what would we look for?
6 Would we look for the telephone network switching
7 service?
8 A. So... no.
9 Q. What would we look for, sir?
10 A. (Reviews exhibit.)
11 I mean, based on this definition, network
12 telephone service is a providing by any person of access
13 to a telephone network.
14 Q. Yeah.
15 A. So we would need to know the definition of
16 "person".
17 Q. Okay. Am I a person?
18 A. You could be.
19 Q. I hope I am.
20 A. (Laughter).
21 Q. What else would we need to know, if anything?
22 A. We would need to ensure that... that you're
23 providing any of the -- access to a telephone network,
24 switching service, toll, coin operated, or providing of
25 telephonic video data or a other similar transmission
In Re: TracFone Wireless, Inc.Nate Malone
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1 for hire via a telephone network.
2 Q. What does "network telephone service" in terms
3 of -- well, never mind. Let me ask you a different
4 question.
5 Do you contend that TracFone provides network
6 telephone service?
7 A. I do.
8 Q. What constitutes -- and if you do -- if you do
9 so, which apparently you said you do, explain how it
10 does it.
11 A. TracFone provides access to the telephone
12 network to its customers.
13 Q. What telephone network?
14 A. The local telephone network through means in --
15 in this case TracFone buys what they call airtime from
16 larger providers, larger carriers, to sell that airtime
17 for network telephone service to their customers.
18 Q. Well, I'm -- I'm -- I'm going to go back and
19 understand. How does TracFone provide network telephone
20 service? What's your -- how do you contend that
21 happens?
22 A. They have a -- they operate a virtual network
23 that allows their customers access to the telephone
24 network from -- essentially allows them to access cell
25 network -- like, cellphone network that is put in place
In Re: TracFone Wireless, Inc.Nate Malone
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1 by T-Mobile, other large carriers.
2 Q. Does TracFone own facilities in Renton that --
3 that it uses to create a telephone network?
4 A. I would say that TracFone does not have any
5 physical facilities in -- in that sense. However,
6 TracFone does have specialized software and SIM cards
7 and other facilities installed on their specific phones
8 or the "bring your own SIM card" phone kits that allow
9 them to manage and operate the access to the telephone
10 network.
11 Q. What facts do you have that support the answer
12 you just gave me? Where'd that information come from?
13 A. Well, I have purchased a TracFone for one, so
14 I -- I am familiar with the process. And some of this
15 is fairly widely known, that if you wanted to have a
16 cellphone, you could go purchase a cellphone from
17 TracFone and gain access to their service.
18 Q. Are you done with your answer?
19 A. I believe so.
20 Q. When did you purchase a TracFone phone?
21 A. Prior to my leave, so it would have been either
22 August, September, October time frame.
23 Q. So in October of 2020 maybe you bought a
24 TracFone phone?
25 A. Yes.
In Re: TracFone Wireless, Inc.Nate Malone
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1 Q. So that was well over a year and a half after
2 the TracFone audit assessment was made; correct?
3 A. Correct.
4 Q. So at the time of the assessment, what was your
5 understanding of how TracFone -- whether it was -- did
6 you have an understanding of how TracFone provided
7 network telephone service?
8 A. It was the same understanding that I have now,
9 maybe with a few more details now that I have purchased
10 a TracFone. But the taxpayer did provide TRS with
11 their -- their business processes or their... And TRS
12 did communicate what -- what TracFone does. Plus I've
13 done Internet research into what TracFone's business
14 model was.
15 Q. When did you perform the Internet research?
16 A. Throughout the audit.
17 Q. How come it's not in your file?
18 A. It wouldn't be part of the file.
19 Q. The research you performed on the taxpayer isn't
20 part of the audit file? Really?
21 A. Not necessarily.
22 Q. Wow. Okay.
23 What does it take to be in the telephone
24 business?
25 A. Can you rephrase that question?
In Re: TracFone Wireless, Inc.Nate Malone
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1 Q. Yeah, I will. I will rephrase that question.
2 I believe you said earlier that TracFone was in
3 the telephone business; right?
4 A. That is correct.
5 Q. What does it take for a company to be deemed to
6 be in the telephone business?
7 MS. SAND: Object to the form of the
8 question. Overbroad.
9 You can go ahead and answer.
10 BY MR. DEGGINGER:
11 Q. Go ahead and answer.
12 A. It takes them providing network telephone
13 service per the statute.
14 Q. Okay. Now, the word "access", you've talked
15 about access to a telephone network; right?
16 A. Correct.
17 Q. What telephone network does TracFone provide
18 access to?
19 A. They provide access to the telephone network
20 such as T-Mobile, Sprint, Verizon, AT&T, or other large
21 carriers that have large facilities and cell towers, et
22 cetera. They provide access to -- to that network.
23 Q. And how does it do that, if you -- if you know?
24 A. They provide access by purchasing time or they
25 call airtime from those large carriers, and then
In Re: TracFone Wireless, Inc.Nate Malone
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1 reselling it to customers. And they use the SIM cards
2 and other software to essentially manage the number of
3 minutes or, in some cases, unlimited that a customer
4 uses on those network -- telephone networks.
5 Q. And did you buy a SIM card -- did you buy a
6 card?
7 A. I -- a -- a airtime minute card?
8 Q. Yeah.
9 A. Yeah, I did.
10 Q. Where'd you buy it?
11 A. I bought it at Fred Meyer in Renton.
12 Q. And when you bought it at Fred Meyer in Renton,
13 did you get a receipt?
14 A. I did.
15 Q. Was the receipt from Fred Meyer?
16 A. Yes.
17 Q. So the card you bought was purchased from a
18 retailer; correct?
19 A. It was.
20 Q. Okay. And did... And so how did the retailer
21 get that card?
22 A. I would assume that they purchased it from
23 TracFone.
24 Q. Okay. So TracFone was selling to Fred Meyer
25 that card; correct?
In Re: TracFone Wireless, Inc.Nate Malone
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1 A. They would have sold that card to -- to Fred
2 Meyer.
3 Q. And Fred Meyer sold it to you, their customer;
4 correct?
5 A. That is correct.
6 Q. Let's go over to -- back over for a minute to
7 35A.82.060.
8 A. Okay.
9 Q. Now, as you were just talking about a moment
10 ago, when... when you purchased that card from Fred
11 Meyer, that card provided -- are you saying that that
12 card provided you access to a telephone network?
13 A. It did not until I activated the card through
14 the TracFone website.
15 Q. So you're saying it was not activated at the
16 time that you purchased; is that right?
17 A. It is not activated as minutes until I went
18 through TracFone's procedure to activate that -- those
19 minutes on the TracFone device that I purchased.
20 Q. But if you didn't buy the card, you couldn't
21 have had access; correct?
22 A. Correct.
23 Q. So was... Fred Meyer providing you access to the
24 network?
25 A. No, they were providing me a means to purchase a
In Re: TracFone Wireless, Inc.Nate Malone
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1 card which I then used to contact TracFone to get access
2 to the network.
3 Q. But if you didn't --
4 A. Fred Meyer --
5 Q. If you didn't purchase the card, you couldn't
6 have access; correct?
7 MS. SAND: Counsel, let him finish answering
8 the question.
9 THE WITNESS: Fred Meyer did not provide
10 access to the telephone network. It provided a means to
11 get access through TracFone.
12 BY MR. DEGGINGER:
13 Q. So they provided a means to get -- they provided
14 access then? Without it you couldn't have had it;
15 right?
16 A. That's not entirely true. I could have
17 purchased minutes directly through TracFone on the
18 website at the time that I had gone in to use that
19 cellphone for the first time, activate the TracFone, I
20 could have purchased minutes at that point.
21 Q. But that's not what you did?
22 A. In this case it is not.
23 Q. All right.
24 All right. Let's look at --
25 MR. EDWARDS: Is this a good time for a
In Re: TracFone Wireless, Inc.Nate Malone
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1 five-minute break?
2 MR. DEGGINGER: Actually it is, before we do
3 another exhibit.
4 (A break was taken
5 from 11:42 a.m. to 11:51 a.m.)
6 BY MR. DEGGINGER:
7 Q. Mr. Malone, I had -- I wanted to ask you when we
8 were talking about network telephone service and you
9 were describing to me your position about -- about
10 network telephone service, could you tell me what is
11 your understanding of -- are all of the activities that
12 constitute providing access to a telephone network?
13 A. What are the activities that constitute
14 providing access?
15 Q. Yeah.
16 A. That would be providing any means to access a
17 telephone network, whether that's through selling
18 prepaid, post-paid plans, phone plans, minutes, or other
19 way to access the telephone network.
20 Q. Well, what other ways are there? Are there
21 other ways? Let me give you one example. Me handing
22 you my cellphone.
23 A. You're not a provider that's providing access to
24 a telephone network.
25 Q. I hand you my cellphone to make a call. Am I
In Re: TracFone Wireless, Inc.Nate Malone
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1 providing you access to a telephone?
2 A. Your provider would be providing access to the
3 telephone network.
4 Q. My provider would be?
5 A. Uh-huh.
6 Q. How would they do that?
7 A. I am not well-versed in how the radio
8 communication between cell towers and cellphones works.
9 But they have sold you, I'm assuming, either prepaid or
10 post-paid plan that allows you to gain access to their
11 network.
12 Q. When you purchased -- did you say it was a card
13 or a phone and a card at Fred Meyer?
14 A. It was both.
15 Q. Did you pay sales tax to Fred Meyer? Did they
16 charge you sales tax?
17 A. I believe so. I don't recall specifically on
18 the receipt, but I believe so.
19 Q. Did they -- and you said you did this in --
20 before you went on leave -- right? -- in --
21 A. Yes, yes.
22 Q. And did they charge you the E911 tax as well?
23 A. I do not recall. I would have to look at the
24 receipt specifically.
25 Q. Do you have an understanding of whether they
In Re: TracFone Wireless, Inc.Nate Malone
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1 were supposed to charge you E911 tax in this
2 transaction?
3 A. I do not.
4 Q. You do not know?
5 A. I don't.
6 Q. Okay.
7 On that transaction you made at Fred Meyer,
8 does... Is it the City's position that, well, TracFone
9 would owe utility tax on some part of the revenue that
10 you paid to Fred Meyer when you purchased that card or
11 that phone?
12 A. Can you rephrase the question? Are you -- are
13 you asking whether or not at the time of the sale or are
14 you just saying at some point the revenue earned from
15 that transaction would be subject to the telephone tax?
16 Q. I'll try to ask it the best I can.
17 A. Okay.
18 Q. It may not be perfect, but, you know, I'm just
19 an old lawyer.
20 My question was: In connection with the
21 transaction that you were testifying about where you
22 purchased a SIM card or a SIM card and a phone in Renton
23 at a Fred Meyer; correct?
24 A. Correct.
25 Q. Is it your expectation that part of the money
In Re: TracFone Wireless, Inc.Nate Malone
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1 that you paid to Fred Meyer when you purchased -- made
2 that purchase would be owed by TracFone in the form of
3 utility tax?
4 A. Yes, but not necessarily specifically based on
5 that specific transaction, because TracFone sold the
6 cards prior to my purchase so that the tax would be
7 subject to their gross receipts from that, which would
8 have been probably prior to my purchase.
9 Q. Because it was a -- is that because TracFone's
10 sale to Fred Meyer was a resale, wholesale sale;
11 correct?
12 A. It was a wholesale sale of the card and phone,
13 but not a wholesale sale of the network telephone
14 service.
15 Q. Why not?
16 A. Well, Fred Meyer does not have any access to
17 do -- to resell airtime minutes that are granted from
18 T-Mobile, et cetera -- or to TracFone, they do not have
19 the authority to divvy those out as they see fit. Those
20 are not sales of network telephone service. Those are
21 sales to -- basically as a distribution effort to get
22 cards and reach the most customers possible, TracFone
23 has elected this business model.
24 Q. My question was very simple, a lot simpler than
25 your answer, and I think your answer wandered off and
In Re: TracFone Wireless, Inc.Nate Malone
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1 didn't really answer my question.
2 MR. DEGGINGER: So, Madam Court Reporter,
3 could you reread my question.
4 BY MR. DEGGINGER:
5 Q. And, Mr. Malone, could you take another shot at
6 answering.
7 (Question was read back.)
8 BY MR. DEGGINGER:
9 Q. How much of the sale was -- yeah, can you answer
10 the question? Can you answer the question, Mr. Malone?
11 A. I -- I don't see how my answer would differ.
12 There was a wholesale sale of the card and phone to Fred
13 Meyer, but there was no wholesale sale of the network
14 telephone service.
15 Q. Well, but when you -- when you acquired that
16 card, you didn't pay another fee to use it, did you?
17 A. After I purchased the card?
18 Q. Yeah.
19 A. That's correct.
20 Q. So there was no other sale afterwards. You were
21 the ultimate retail purchaser, were you not?
22 A. Correct.
23 Q. Okay.
24 All right. Can you take a look at RCW
25 35A.82.060?
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1 A. Okay.
2 Q. So I want to kind of go through this and
3 understand your testimony about the City's position
4 regarding this, how this applies to the TracFone
5 assessment; okay?
6 A. Okay.
7 Q. And you reviewed this statute before you came
8 here today; right?
9 A. Yes.
10 Q. You probably reviewed it during the break,
11 didn't you?
12 A. No, I did not.
13 Q. All right.
14 Is it your understanding that the statute
15 provides that the utility tax can be imposed on 100
16 percent of the gross revenue derived from intrastate
17 toll services?
18 A. That is correct.
19 Q. But there are some exclusions in the statute
20 from that grant of authority; correct?
21 A. That is correct.
22 Q. Specifically, I guess, would you agree that the
23 statute allows cities to impose the utility -- the
24 statute excludes revenue that represents charges to
25 another telecommunications company as that term is
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1 defined in RCW 80.04.010?
2 A. That's correct.
3 Q. Can you give me an example of what that would
4 be?
5 A. So that would be for, like, connecting fees,
6 switching charges or other access charges between two
7 telecommunications companies.
8 Q. Okay. Also isn't it -- is it your understanding
9 that the statute prevents imposing utility tax on
10 charges for network telephone service that are purchased
11 for resale?
12 A. That is correct.
13 Q. Okay.
14 So if TracFone sells a prepaid wireless card to
15 Fred Meyer and then Fred Meyer sells the card to you,
16 isn't it true that Walmart -- excuse me, that Fred
17 Meyer's purchase of the card from TracFone is a purchase
18 for resale?
19 A. They are not purchasing network telephone
20 service from TracFone. The transaction above that level
21 is what this proviso is specifically referring to which
22 would be the sale of network telephone service to
23 TracFone from T-Mobile, AT&T and other providers that is
24 ultimately how TracFone enables its users to gain access
25 to the telephone network.
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1 Q. Where does it say that? Look at the statute,
2 show me the words that you're referring to specifically
3 in your answer to -- to -- to your answer.
4 A. Specifically... or charges for network telephone
5 service that is purchased for resale. So my answer is
6 saying that it has to be network telephone service that
7 is purchased for resale. Not cards, not phones that are
8 purchased for resale. It has to be network telephone
9 service that is purchased for resale.
10 Q. Doesn't the card provide network telephone
11 service?
12 A. It does not until it is activated through
13 TracFone's system.
14 Q. Well, that's -- that's activation. It doesn't
15 talk about what you're purchasing. You're purchasing
16 minutes. You bought minutes, didn't you?
17 A. But ultimately that's what provides access to
18 the telephone network is activation.
19 Q. But there's no transaction that results in
20 activation other than your purchase of the card, sir;
21 isn't that true?
22 MS. SAND: Object to the extent that these
23 questions have been asked and answered and that they are
24 argumentative.
25 BY MR. DEGGINGER:
In Re: TracFone Wireless, Inc.Nate Malone
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1 Q. Go ahead and answer the question.
2 A. Can you repeat the question, please?
3 Q. No, but the court reporter can repeat it.
4 (Question was read back.)
5 THE REPORTER: And we seem to have lost
6 Mr. Edwards.
7 MR. DEGGINGER: Yes, I think Mr. Edwards had
8 to step out for a bit.
9 THE REPORTER: Okay.
10 MR. DEGGINGER: So -- but thank you for
11 pointing that out.
12 THE WITNESS: So the answer would be
13 there -- there's the two transactions that take place
14 involved with that card: The transaction of selling the
15 card to Fred Meyer, and the transaction of Fred Meyer
16 selling the card to me.
17 BY MR. DEGGINGER:
18 Q. Right. And the transaction of selling the card
19 to Fred Meyer is a wholesale sale of network telephone
20 service because it's a card that provides you network
21 telephone service; right?
22 A. It is a card that provides a means to gain
23 access to network telephone service. It is not
24 providing network telephone service until it is
25 activated through TracFone's system.
In Re: TracFone Wireless, Inc.Nate Malone
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1 Q. You've purchased it for that purpose though;
2 correct?
3 A. That is correct. And --
4 (Inaudible due to crosstalk.)
5 BY MR. DEGGINGER:
6 Q. I'm sorry, go ahead and finish your answer.
7 A. I did purchase it if that reason.
8 Q. Okay.
9 A. Correct.
10 Q. And you paid for it, you paid Fred Meyer the
11 money for it; correct?
12 A. That is correct.
13 Q. That was a retail transaction; correct?
14 A. That's correct.
15 Q. And with that -- as a result of that retail
16 transaction, you had -- you didn't have to pay any more
17 money in order to use that service; correct?
18 A. Beyond the purchase at Fred Meyer, I did not
19 have to pay any additional.
20 Q. Right.
21 A. But I also could not use that service until it
22 was activated through TracFone. Because ultimately
23 TracFone controls the network telephone service and
24 means to provide access to the local telephone network.
25 Q. How does it do that?
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1 A. Through their software, SIM cards, activation
2 codes. I -- I don't understand necessarily all the
3 mechanics and technology involved in it, but that is
4 my -- my understanding of -- of how they do that.
5 Q. Could you -- I'm going to jump ahead to ask you
6 to open the envelope that is letter Z, zed.
7 A. (Complies.)
8 MS. SAND: Kate and Mr. Degginger, would
9 this be the new Exhibit 59?
10 MR. DEGGINGER: This would be five-niner.
11 Thank you, Counsel.
12 (Exhibit No. 59 marked.)
13 MS. SAND: Trying to keep it straight.
14 MR. DEGGINGER: Glad someone is.
15 BY MR. DEGGINGER:
16 Q. Mr. Malone, do you have Exhibit 5 -- 59 in front
17 of you now?
18 A. It says Exhibit 62 front, but it's the --
19 Q. Yes.
20 A. Okay.
21 Q. Could you scratch out Exhibit 62 so it doesn't
22 confuse you or me or anyone else and make it Exhibit 59?
23 A. Okay.
24 Q. All right. Apologies. This is what I talked
25 about at the beginning of our -- our little seance
In Re: TracFone Wireless, Inc.Nate Malone
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1 today.
2 MS. SAND: (Laughter).
3 BY MR. DEGGINGER:
4 Q. This is a copy of RCW 82.14B.020. Are you
5 familiar with that statute?
6 A. I am not.
7 Q. I want to direct your attention to the second
8 page of the exhibit. And I'll represent to you that the
9 statute addresses some of the topics that we've been
10 talking about today. If you look at a definition sub
11 12, there's a definition of a retail transaction. Do
12 you see that?
13 A. Yes.
14 Q. What does it say?
15 A. "'Retail transaction' means the purchase of
16 prepaid wireless telecommunications service from a
17 seller for any purpose other than resale."
18 Q. Okay. And what is a seller?
19 A. Seller means any person who sells prepaid
20 wireless telecommunications service to another person.
21 Q. So when Fred Meyer sold you that card, they were
22 a seller, were they not?
23 MS. SAND: Objection to the extent it calls
24 for a legal conclusion. Also the statute is beyond the
25 scope of this audit. It pertains to statutory authority
In Re: TracFone Wireless, Inc.Nate Malone
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1 for counties.
2 BY MR. DEGGINGER:
3 Q. Take a look at the statute that I read.
4 A. Yes.
5 Q. Is -- was Fred Meyer a seller of prepaid
6 wireless telecommunications services to you?
7 A. No, they were not.
8 Q. They didn't sell you a card?
9 A. Are you trying to use this statute to apply to
10 RCW 35A.82.060?
11 Q. I'm asking you to read this and ask you if the
12 retailer that you referred to was a seller.
13 A. I -- I think that these definitions don't
14 pertain to the RCW at question. However, still the
15 definitions here, I -- without reading the definition
16 for prepaid wireless telecommunications service, it's --
17 it's hard for me to give an answer as to the mechanics
18 of it, because prepaid wireless telecommunications
19 service could be a similar definition to network
20 telephone service. And therefore in that case, Fred
21 Meyer would have not been the seller of the prepaid
22 wireless telecommunications; it would have been
23 TracFone.
24 Q. You don't know whether the statute applies?
25 A. This statute 82 -- this statute RCW 82.14B.020
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1 does not apply.
2 Q. Have you reviewed it before?
3 A. I have not.
4 Q. Then how do you -- what do you base the
5 determination on?
6 A. Because the controlling statute is RCW
7 35A.82.060, and at the top of this it specifically says
8 Chapter 82.14B Counties--Tax on Telephone Access Line
9 Use, so...
10 Q. And you heard your -- and you heard your counsel
11 say that during her objection, didn't you?
12 A. Yes.
13 Q. Okay.
14 Do you know whether there's a statute that is --
15 do you know whether or not -- have you reviewed the E911
16 statute?
17 A. Not in detail. I -- no.
18 Q. Do you know that -- that the E911 tax is now
19 collected at the retail level?
20 A. I don't know a lot of details about the E911
21 tax.
22 Q. Do you know if there's a definition of "retail
23 transaction" that applies to a transaction involving the
24 collection of tax on prepaid wireless telecommunications
25 service?
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1 A. I -- I would not know without reviewing this
2 statute.
3 Q. You don't know; okay.
4 Well, is there a provision in 060 that we were
5 talking about that -- that defines what "resale" is?
6 A. We would have to look at the definitions to see
7 if there is a definition that is applicable.
8 Q. Are you aware of a definition of resale in 060?
9 A. I would have -- I would have to look at --
10 (Inaudible due to crosstalk.)
11 BY MR. DEGGINGER:
12 Q. Yeah, you can look at it. 35A.82.060.
13 A. So 35A.
14 MS. SAND: Weren't the definitions in 82.16?
15 MR. DEGGINGER: I believe he said he wanted
16 to look at 80 -- 35A.82.060, Counsel, so I was giving
17 him the opportunity.
18 THE WITNESS: What you're asking me for the
19 definition of resale under 82.060, and there is no
20 definitions under that statute. You would have to refer
21 to 82.16.010.
22 BY MR. DEGGINGER:
23 Q. And there's no definition of resale in that
24 statute either, is there?
25 A. It does not appear so. So we may have to look
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1 at the definitions 80 -- in 82.04.065.
2 Q. That says reseller, not resale.
3 A. So there is no definition in 35A.82.060.
4 Q. Okay. So the term "resale" is not defined in
5 35A.82.060?
6 A. Correct.
7 Q. Okay.
8 Okay. If you would open envelope R.
9 A. (Complies.)
10 Q. Do you have that one, Mr. Malone?
11 A. I do.
12 Q. And I believe this was previously marked as
13 Exhibit 40. Is -- is Exhibit 40 the assessment that was
14 sent to TracFone on February 14th, 2019?
15 A. It is.
16 Q. Okay. And you have reviewed this document
17 before; correct?
18 A. Yes.
19 Q. And your name appears as a CC -- correct? -- to
20 this communication?
21 A. That's correct.
22 Q. All right.
23 Before -- before this assessment was sent out,
24 had you had any communication with TracFone?
25 A. With TracFone directly?
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1 Q. Yeah.
2 A. I do not believe so.
3 Q. Had you performed any of this Internet research
4 you were referring to in one of your prior answers about
5 TracFone's business?
6 A. Likely, yes, I had at this time.
7 Q. And again was that in your -- was that in the
8 audit file?
9 A. It would not -- it was not.
10 Q. Okay.
11 Did you review -- I believe you said you may
12 have reviewed the schedules that were provided with this
13 audit; correct?
14 A. Yes.
15 Q. Did you review any of the Excel files from which
16 this data was created?
17 A. Yes.
18 Q. Did you -- what sort of review or oversight did
19 you perform before it went out?
20 A. I went through the Excel file to ensure that the
21 tax, both fee and interest schedule appeared sound and
22 accurate, as well as the detail of unreported tax, and
23 the estimation methods used appeared reasonable and
24 accurate.
25 Q. Had you reviewed any of the... Had you
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1 performed any analysis of whether TracFone fit within
2 the definitions that we've talked about in the statutes
3 for application of utility tax?
4 A. At this point I believe we had been discussing.
5 Q. When you say "we", who are you referring to?
6 A. I would have been working with potentially Jan
7 and definitely inside counsel.
8 Q. Are there any records of your conversations or
9 your discussions about the application of the utility
10 tax to TracFone's business?
11 A. Likely not that were not part of attorney-client
12 privilege as our counsel was involved in -- in most of
13 those conversations.
14 Q. Okay. Well, and I appreciate that, but the
15 privilege log that we have received from the City listed
16 one document.
17 A. Okay.
18 Q. That was it. So that's why I'm asking.
19 Certainly if you and Jan had been exchanging discussions
20 or emails about it without counsel being copied, it
21 wouldn't be privileged; right? So I'm trying to -- I'm
22 just trying to find out if there's any record of your --
23 your analysis before this assessment was sent to the
24 taxpayer.
25 A. Sure. And I think most of our communication was
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1 in-person in meetings.
2 Q. Okay.
3 Have you ever calculated -- the total amount due
4 on this audit was what, $326,000?
5 A. That is correct.
6 Q. And TracFone has paid that; correct?
7 A. Correct.
8 Q. Have you ever calculated how much the -- how
9 much less the -- the amount due for this audit period
10 would have been if the audit had been sent out in the
11 fall of 2017 when it was complete?
12 A. I have not.
13 Q. Do you think it's fair to the taxpayer to have
14 delayed sending out this audit and allowing penalties
15 and interest to accrue for as long as it did because the
16 City or its consultant wanted to see if there was some
17 other reason for supporting their findings?
18 A. I -- I think no additional penalties would have
19 accrued because we were well past the maximum time. In
20 regards to the interest, I do think -- and again I think
21 we have discussed this, that there would be leniency
22 with the City if -- if the interest was in dispute, if
23 that was the only dispute, and TracFone had agreed to
24 pay the outstanding tax liability that was assessed and
25 accurate.
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1 Q. Would you look at tab AA. Or envelope AA I
2 should say. Which will be Exhibit 60, I believe.
3 (Exhibit No. 60 marked.)
4 THE WITNESS: (Complies.)
5 BY MR. DEGGINGER:
6 Q. Do you have it, Mr. Malone?
7 A. I do.
8 Q. Is this an administrative order that you signed
9 directed to TracFone?
10 A. It is, yes.
11 Q. And it's for the period January 2007 through May
12 31, 2019. So it would include the audit period that
13 we've been here talking about today?
14 A. That is correct.
15 Q. So after the audit's already been issued, why
16 did you request all these documents that apparently you
17 wanted from TracFone?
18 A. As part of ongoing communication with TracFone
19 and its representatives, we wanted to further ensure
20 that TRS had -- had gone through the appropriate steps
21 and we wanted to ensure that the assessment was --
22 remains sound and accurate with any new potential
23 information that TracFone could provide at their first
24 sign of dispute with the assessment.
25 Q. So you didn't feel that it was necessary to get
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1 these contracts between TracFone and its... and others,
2 retailers or wireless companies in order to issue the
3 assessment; is that right?
4 A. Prior to that time, TRS would have been the ones
5 requesting any records that they felt were required to
6 create an accurate and appropriate assessment as our
7 professional service provider.
8 Q. Did you believe that their work was incomplete
9 and you needed to supplement?
10 A. I did not. I think we were just crossing our Ts
11 and dotting our Is and making sure that we had reviewed
12 all potential documents in relation to this case.
13 Especially after TracFone and its representatives
14 indicated that the tax amount was in dispute, we wanted
15 to ensure that it was 100 percent accurate.
16 Q. Okay.
17 If you go to tab -- excuse me... envelope I
18 believe it's U, letter U.
19 A. (Complies.)
20 Okay.
21 Q. This is Exhibit 61.
22 (Exhibit No. 61 marked.)
23 BY MR. DEGGINGER:
24 Q. Is Exhibit 61 a copy of the Renton utility tax,
25 Mr. Malone?
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1 A. Yes, this is.
2 Q. You're familiar with that document; correct?
3 A. Yes.
4 Q. This is the current version of the -- of the
5 utility tax ordinance; correct?
6 A. I believe so. Yes, it is.
7 Q. All right.
8 I understand that the ordinance was revised in
9 late 2019; is that right?
10 A. That's correct.
11 Q. What was the reason for the changes?
12 A. This was during a time when we did code changes
13 across several different code chapters in our Renton
14 Municipal Code pertaining to tax. Specifically on
15 ordinance 5944 which is what -- what ordinance amended
16 the tax code, we wanted to, number one, ensure that the
17 exercise of revenue license power was indicated in
18 there.
19 Also we wanted to ensure that the reference to
20 RMC 526 as our administrative provisions chapter was in
21 place, because at -- at the time 526 essentially stated
22 that it was the administrative chapter over these other
23 chapter 5 -- chapter or title 5 chapters, and to make it
24 more clear we had indicated that in this chapter that
25 specifically administrative provisions of 526 apply.
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1 Also in going through definitions, we found that
2 our definitions did not necessarily 100 percent verbatim
3 match with some of the authorizing statute, so some of
4 those were up -- updated to -- to match exactly.
5 Q. Specifically do you remember which provisions
6 didn't match up?
7 A. I --
8 Q. Definitions didn't match up I should say.
9 A. There was no verbatim definition match for
10 "network telephone service" because it previously had
11 been combined with the definition of telephone business,
12 so they were essentially both one in the same.
13 "Telephone business" essentially contained the same
14 definition of "network telephone service".
15 Q. Does the City's -- with respect to the telephone
16 business, if you will --
17 A. Uh-huh.
18 Q. -- because I look at 11- -- excuse me, 5-11-3
19 under DEFINITIONS, you have CELLULAR TELEPHONE BUSINESS.
20 Is that a term that is found in the statute?
21 A. It is not.
22 Q. Why do you have a definition of it then?
23 A. We split out for reporting purposes cellular and
24 telephone taxes.
25 Q. How come?
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1 A. For tracking purposes.
2 Q. Tracking what? I'm trying to understand that.
3 A. Our city revenues so we can determine over time,
4 you know, how telephone tax is fluctuating up or down
5 and how cellular tax is fluctuating up or down.
6 Q. Okay. Got it.
7 Is "cellular telephone service" also a
8 definition that's not found on the statute?
9 A. I believe so.
10 Q. And it's defined as for any mobile
11 telecommunications service or mobile wireless service.
12 Are those two terms found in RCW 35A.82.060 or the RCW
13 80 statutes?
14 A. I do not believe so.
15 Q. So how come these were included?
16 A. I would have to look back and look at the
17 history as to why we included these definitions.
18 Q. Okay.
19 You mention the definition of "network telephone
20 service" which is on the second page in J. Is it your
21 testimony that this definition mirrors that in the state
22 statute?
23 A. It -- it should mirror that in the state
24 statute.
25 Q. What was different about it previously?
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1 A. As I mentioned, "telephone business" was the
2 definition, and under "telephone business" it contained
3 the definition for "network telephone service".
4 Q. Okay. I believe in a prior version of it, it
5 said the providing by any person of access to the local
6 telephone network as opposed to a local telephone
7 network. And I was just curious if you could describe
8 for me why that change was made.
9 A. That could be. I think that the only reason we
10 would change that is to match the state statute. I
11 don't think that it would have an impact.
12 Q. Where in the Renton utility tax ordinance does
13 it state that the tax only can be collected on revenue
14 received from intrastate services?
15 A. So that would be under the definition of...
16 (Reviews exhibit.)
17 May not specifically state that that I can see.
18 (Reviews exhibit.)
19 Q. Are you still looking?
20 A. Yeah, I don't see a specific statement on that.
21 Q. Okay. Where in the Renton utility tax ordinance
22 does it state that revenue from sales for resale are
23 exempt from the tax?
24 A. I don't think that there's a specific cite for
25 that. I do not believe it contains that language.
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1 Q. So without those limitations, it would appear
2 that the Renton utility tax is attempting to tax
3 activities that are exempt under the state statute; is
4 that right?
5 MS. SAND: Object to the extent that calls
6 for a legal conclusion.
7 Go ahead and answer, Nate.
8 THE WITNESS: I think at its face it could
9 be construed that way, in which case the controlling
10 statute, RCW 35A.82.060, would be the controlling
11 statute as to what we can apply the utility tax to.
12 BY MR. DEGGINGER:
13 Q. Okay. I wanted to ask you about... You had
14 mentioned the administrative provisions earlier. I
15 think that's 5-11-2; is that right?
16 A. Correct.
17 Q. And I wanted to ask you about whether the change
18 that was made in the statute in November of 2019,
19 November 18th, 2019, changed the interest rate that
20 would be charged on assessments.
21 A. The change -- the ordinance 5944 wouldn't have
22 changed that because 526 already stated that it was the
23 administrative chapter that controlled over the title 5.
24 Q. All right. So let me under -- I'm just trying
25 to understand it, because it's a little -- it's not
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1 intuitive. At least to me it's not intuitive. Maybe it
2 is to you because you deal with it all the time. But...
3 Does it incorporate another statute which effectively
4 applies a different schedule of interest rates than had
5 been applied before for assessments?
6 A. Not -- the 2019 ordinance would not have
7 affected that because during -- once 526 was -- was
8 implemented or was adopted, that statute specifically
9 stated that it controlled the administrative provisions
10 for 525, 511, and various other chapters.
11 Q. Is there a provision in the ordinance that says
12 that assessment interest is going to be charged in
13 accordance with 82.32.050?
14 A. That would be under 526.
15 Q. Okay. Different section.
16 And does that apply to assessments for utility
17 tax?
18 A. It would once it was adopted.
19 Q. And when was it adopted?
20 A. I would have to look at the exact date, but
21 around 2016, beginning of 2016.
22 Q. 2016?
23 A. Yeah, I believe that was around the time when
24 that was adopted. It was before I started with the
25 City.
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1 Q. So would this change have impacted the
2 assessment for TracFone?
3 A. The 2019 change should not have affected the
4 assessment for TracFone.
5 Q. And why was that?
6 A. Because 526 was already controlling prior to
7 2019.
8 Q. So can you tell me was 526 controlling -- well,
9 what was the interest rate on the assessment for
10 TracFone, and had the assessment -- let me ask that
11 question first. I'll break it in two.
12 A. Can you repeat that first question?
13 Q. Sure. I was asking you what the interest rate
14 was on the assessment.
15 A. Oh, I would have to look at the exact interest
16 rate.
17 Q. I think it was in the exhibit, but... if the
18 assessment had been issued after the change, would the
19 interest rate have changed for the TracFone assessment?
20 A. During some of the periods, yes.
21 Q. Okay. And what would it have changed to?
22 A. It would have changed to whatever 526 adopts for
23 the interest rate as of the starting date that that was
24 adopted.
25 Q. And as a general matter, did the interest rates
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1 adopted under 526 go down for assessments?
2 A. Versus previous --
3 Q. 5 --
4 A. Versus 511 previously?
5 Q. Correct.
6 A. I believe so.
7 Q. Okay.
8 And what would have been the effective date of
9 the change?
10 A. Like I said, I think it was around the beginning
11 of 2016, but without the ordinance in front of me, I
12 would -- it's my best -- best guess.
13 Q. Okay.
14 Oh, which ordinance would you want?
15 A. It would be the chapter 526.
16 Q. I don't have all of 526, so I can't -- I can't
17 help you out. I can't give you that open-book part of
18 the exam for that.
19 Was any consideration given to the timing of the
20 final determination as it related to the interest that
21 would be charged on the TracFone assessment?
22 A. I do not believe that the interest was brought
23 up as a dispute in our initial conversations with
24 TracFone or the administrative hearing.
25 Q. Well, I was asking really internally.
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1 A. Oh. I don't believe that the interest was
2 talked about beyond our brief settlement talks after the
3 assessment was issued.
4 Q. Could you open up envelope V for Victor.
5 A. (Complies.)
6 Okay.
7 Q. Do you have that, Mr. Malone?
8 A. I do.
9 Q. And is envelope V --
10 MR. DEGGINGER: This will be a new exhibit.
11 I believe it would be 62; is that right, Kate?
12 MS. SAND: I believe it's 58.
13 MR. DEGGINGER: No.
14 MS. SAND: Because we started with 5-9.
15 MR. DEGGINGER: 62.
16 MS. SAND: I believe that Exhibit 58 is
17 Exhibit 58.
18 MR. DEGGINGER: Well, we -- oh, it was
19 Exhibit 58. It's already been marked is what you're
20 saying.
21 MS. SAND: Yes.
22 MR. DEGGINGER: All right. I'm with you
23 now. Sorry.
24 BY MR. DEGGINGER:
25 Q. Are you familiar with this document, sir?
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1 A. I am.
2 Q. It says it's Rule 242?
3 A. Yes.
4 Q. What is this rule?
5 A. The intention of developing these rules are to
6 be helpful tax rules that taxpayers can use to determine
7 how certain revenue streams are to be taxed and certain
8 industries are to be taxed. However, in this case this
9 rule has never gone through the formal adoption process.
10 It's more as an educational tool internally.
11 Q. Okay. So it's never been formally adopted?
12 A. No.
13 Q. Is that why mere mortals like me could not find
14 it on the City's website?
15 A. That would be correct.
16 Q. Okay.
17 What is the process for promulgating such a
18 rule? Can you explain for me what -- how it would work
19 if it was actually promulgated and adopted? How does
20 that work?
21 A. Well, City of Seattle does adopt tax rules and
22 they have adopted very similar, almost word for word tax
23 rule as this 242. It has to go through public hearing
24 and get public feedback on it before it can be adopted
25 by council.
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1 Q. Okay. So it would have to be subject to a
2 public hearing and adopted by the Renton City Council;
3 correct?
4 A. Correct.
5 Q. And this document, Rule 242, has not gone
6 through that process?
7 A. That's correct.
8 Q. So would it be fair to say that it is not any --
9 it is not a binding rule governing anything involving
10 the TracFone audit; correct?
11 A. It is not a binding rule; that would be correct.
12 Q. In reviewing the materials that were produced to
13 us as the -- as represented as being the TracFone audit
14 file, Rule 242 was not included in it; is that right?
15 A. I don't recall, but that could be possible.
16 Q. And I have not seen any emails or other
17 documents that refer to it in connection with the
18 TracFone audit; is that right?
19 A. That's likely true.
20 Q. Okay.
21 Well, I take it Rule 242 was not used in
22 connection with the preparation of the TracFone audit?
23 A. I do not believe that Mr. Crisp or TRS would
24 have relied upon this 242.
25 Q. Okay. And the City did not rely upon it either,
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1 did it?
2 A. Other than a reference.
3 Q. What do you mean by "other than a reference"?
4 A. We would review this rule in helping -- because
5 the rule almost verbatim has been adopted by City of
6 Seattle, which has a similar controlling statute and
7 similar code to the City of Renton, we use this to kind
8 of help explain to our counsel and others involved on
9 how this would be taxed, but it would have been an
10 internal discussion document.
11 Q. Your counsel, your internal city attorney;
12 correct?
13 A. Yeah.
14 Q. Okay.
15 It wasn't provided to TracFone, was it?
16 A. No.
17 Q. Is it fair to say that the City is not relying
18 on any provisions contained in this rule or -- if you
19 want to call it a rule since it's not been adopted --
20 for the purposes of this assessment?
21 A. Can you repeat that question? Sorry.
22 Q. Sure. You had testified previously that
23 although it says Rule 242, you made it clear that this
24 document, 242, has not been adopted by the City of
25 Renton?
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1 A. That's correct.
2 Q. So it can't be relied upon as authority, if you
3 will, for applying -- for using it in connection with an
4 assessment?
5 A. This rule does not have any statutory authority
6 and has not been adopted as -- as a formal rule.
7 Q. Okay. Who prepared it?
8 A. I did.
9 Q. When did you prepare it?
10 A. This was a document along with many other tax
11 rule draft documents that I would have prepared back
12 when I was working for the City of Tacoma that I brought
13 with me because they were relevant to my new position.
14 Q. Was this a document that had been drafted at the
15 City of Tacoma?
16 A. Yes.
17 Q. Okay.
18 And this is your work; is that right?
19 A. It's a combination of my work and previous
20 others' work and work done by the City of Seattle.
21 Q. Where did the definitions that are contained in
22 it come from?
23 A. Many of these definitions come directly from the
24 Seattle tax rule which has been formally adopted.
25 Q. I'm just going to ask you a few questions about
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1 it. If you look in three pages in, there's a definition
2 O. It says "telecommunications services," "telephone
3 business," and "telephone services". Do you see that?
4 A. Yes.
5 Q. And you say that they are synonymous to each
6 other; is that right?
7 A. That is correct.
8 Q. Where do you -- what's the -- what's the
9 authority that you rely upon for these terms being
10 synonymous with each other?
11 A. I was not relying on any authority.
12 Q. You just decided that they were synonymous with
13 each other?
14 A. Again these definitions came directly from
15 Seattle tax rule which has been formally adopted.
16 Q. How about M, prepaid calling service where it
17 says: for example -- for example, calling cards
18 purchased at retail -- in a retail outlet are, quote,
19 prepaid calling service, closed quote.
20 Where'd that come from?
21 A. That would have also likely come from the City
22 of Seattle tax rule.
23 Q. Move a couple pages over to a section titled...
24 Wholesaling. You see that one?
25 A. Yes.
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1 Q. Where did that information come from?
2 A. So this information would have come also from
3 the Seattle tax rule as well as the controlling
4 statutes. Specifically it almost identically mirrors
5 35A.82.060.
6 Q. It says, "Items listed under the retailing
7 classification in subsection (4)(a) above" -- and I
8 didn't find a (4)(a) -- "when sold to entities for
9 resale to the end consumer are to be reported under the
10 wholesaling classification"; right?
11 A. That is what it says; correct.
12 Q. Those are your words?
13 A. Words -- partially.
14 Q. Okay. Where did that -- what's the source of
15 that conclusion? Is that from the City of Seattle?
16 A. It may have been partially from City of Seattle
17 or City of Tacoma.
18 Q. Do you know?
19 A. I -- I don't recall specifically.
20 Q. If you go down a little bit further, it says
21 Deductions. And you say: There may be deducted from
22 the gross -- total gross income upon which the business
23 and occupation tax or utility tax is computed, and it
24 lists several items. Do you see that?
25 A. Yes.
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1 Q. And you use -- how come you use the word "may"
2 there?
3 A. I would assume that it's softer language than
4 "shall" and without this being formally adopted rule.
5 Q. Is it consistent with state law to your
6 understanding?
7 A. I am not involved in statutory construction, so
8 I don't know if this is an exact mirror of state law.
9 Q. You've been doing a ton of it today. Didn't we
10 talk about earlier that RCW 35A.82.060 excludes certain
11 kinds of activity from being the subject of the utility
12 tax?
13 A. Yes.
14 Q. It's not a may, oh, you can do it if you want.
15 You can't do it, you can't collect it; correct?
16 A. That is correct.
17 Q. All right.
18 Again... go a couple pages over. There is a
19 section that's -- and I apologize, there's no page
20 numbers, so I would say if you go from where we were two
21 pages, there's a section that the top of the page, the
22 first full paragraph starts, "Where the taxpayer's
23 equipment or system". Do you see that?
24 A. Yes.
25 Q. And the next paragraph talks about: For
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1 purposes of Renton telecommunications utility tax, the
2 telecommunication provider whose name is on the prepaid
3 calling card will be deemed to be the provider of the
4 telephone service and treated as the telephone business
5 and subject to the Renton utility tax.
6 Where did that come from?
7 A. That would have likely come from the City of
8 Seattle tax rule, but it is an interpretation of the
9 controlling statutes as to where the network -- network
10 telephone service is being controlled as to who is
11 controlling that network telephone service.
12 Q. Where's the -- where does the word "control"
13 show up in RCW 35A.82.060?
14 A. It does not. It's "access".
15 Q. That's network telephone service, isn't it?
16 A. It is.
17 Q. Okay. So it's not in 35A060 -- 35A.82.060 at
18 all, is it?
19 A. The controlling definitions related to that.
20 Q. Then below that there's an example. That's your
21 work again?
22 A. It would be combination of my work, Seattle or
23 Tacoma.
24 Q. When you say: Company A is deemed to be the
25 telecommunications or the telephone business, again
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1 "deemed", where did that come from? Where did that word
2 come from?
3 A. Again, this is writing in plain language. This
4 is not stat- -- statutory construction. This is writing
5 in plain language that is used to be interpreted -- help
6 interpret tax codes for people who are not lawyers and
7 don't -- are not able to interpret the statutes. This
8 is supposed to be written in plain language for
9 taxpayers to utilize, and that's how it is written in
10 Seattle and Tacoma.
11 Q. So but just to be clear, this language on this
12 document for this city, the City of Renton, has not
13 undergone the scrutiny required to be adopted into
14 something that is binding on people who are taxpayers
15 for the City of Renton; correct?
16 A. That's correct.
17 Q. Okay.
18 I'd like to take a short break, see what I have
19 left. We're getting toward the end. That's the good
20 news. Can we take... take about ten minutes and I'll
21 see what I -- if I have any other questions for you.
22 (A break was taken
23 from 12:56 p.m. to 1:06 p.m.)
24 BY MR. DEGGINGER:
25 Q. Mr. Malone, could you grab envelope Y.
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1 A. (Complies.)
2 Q. Do you have that in front of you, sir?
3 A. I do.
4 Q. Is -- is envelope Y --
5 MR. DEGGINGER: This is a new exhibit, so
6 what's the next exhibit in order?
7 THE REPORTER: 62.
8 (Exhibit No. 62 marked.)
9 MR. DEGGINGER: 62? Okay, thank you.
10 BY MR. DEGGINGER:
11 Q. Mr. Malone, can you identify Exhibit 62 as a
12 TracFone card that you purchased?
13 A. It is, yes.
14 Q. Thank you.
15 And is this the one you purchased in the fall of
16 this year?
17 A. Yes.
18 Q. At Fred Meyer?
19 A. Yes.
20 Q. Okay.
21 And when you were testifying about what you
22 bought and -- and you were speaking specifically of
23 Exhibit 62?
24 A. This and -- and the phone.
25 Q. Okay.
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1 Don't have the phone. I don't have a copy or a
2 picture of the phone. Do you still have your --
3 (Telephonic interruption.)
4 BY MR. DEGGINGER:
5 Q. Do you still have your receipt?
6 A. I do.
7 Q. Could you provide that to Ms. Sand?
8 A. Yes.
9 MR. DEGGINGER: And, Kari, can you provide
10 it to me?
11 MS. SAND: Yes.
12 MR. DEGGINGER: Thank you.
13 BY MR. DEGGINGER:
14 Q. We talked earlier about the documents that were
15 requested from TracFone. Did you review any of the
16 documents that you received?
17 A. Pertaining to the agreements with retailers
18 and --
19 Q. Yeah.
20 A. Yes, I did.
21 Q. Which ones did you review?
22 A. I looked mostly in-depth at the Rent-A-Center
23 agreement. It had the most content. The remaining
24 retailer agreements were more boilerplate agreements
25 from the look of it.
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1 Q. Okay. And -- go ahead.
2 A. Sorry, I remember, like, Kmart was in there and
3 Sears and a couple others.
4 Q. And what do you remember about the Rent-A-Center
5 agreement that was relevant to your work on this matter?
6 A. The Rent-A-Center agreement went into a lot more
7 detail regarding how TracFone was selling the cards and
8 how Rent-A-Center was going to be involved in the
9 process of getting these to consumers, and the... the
10 Rent-A-Center was a little bit unique because I think
11 they were kind of almost activating or working as more
12 of like an agent kind of from the look of it. It seemed
13 that they had a lot more rules that TracFone had set up
14 that they had to follow in terms of -- especially with,
15 like, the "bring your own SIM card" plan, there was a
16 lot more instructions in that agreement than any of the
17 other agreements.
18 Q. Did you look at any others that you had -- in a
19 way -- in sufficient detail that you relied on it for
20 anything involving this assessment?
21 A. I -- I mean, I looked at the remainder, but I
22 don't think that there was anything of content that
23 would have impacted this assessment.
24 Q. Okay. You see that TracFone was often referred
25 to as a reseller?
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1 A. Yes.
2 Q. And that their customers were reselling as well?
3 A. Yes.
4 Q. Okay. All right.
5 At this point I have no further questions at
6 this time. Reserve my right if there's additional
7 documents that are produced. Thank you for your time
8 and attention, Mr. Malone.
9 A. Thank you.
10 MS. SAND: I just have a few questions.
11
12 E X A M I N A T I O N
13 BY MS. SAND:
14 Q. So, Mr. Malone, in reference to the questions
15 that Mr. Degginger just asked you that characterize
16 TracFone as a reseller, would you say that they are a
17 reseller of network telephone service?
18 MR. DEGGINGER: Object to the form. It
19 mischaracterizes.
20 THE WITNESS: They are --
21 BY MS. SAND:
22 Q. You can go ahead and answer.
23 A. They are not. They are a reseller of changeable
24 personal property being the cards and the phones.
25 Q. And who's the "they"?
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1 A. TracFone.
2 Q. In your role as the tax and license manager for
3 the City of Renton, are you aware of other prepaid
4 wireless telephone businesses paying 6 percent telephone
5 utility tax to the City of Renton?
6 A. Our code makes no distinction nor does the
7 controlling statute as to prepaid or post-paid telephone
8 business as to who would be subject to the tax, so
9 either pre- or post-paid would be subject to the same
10 utility tax in the City of Renton.
11 Q. And are you aware of other prepaid wireless
12 telephone businesses like TracFone paying 6 percent
13 utility tax?
14 A. Yes.
15 MR. DEGGINGER: Object to the form.
16 MS. SAND: Thank you. No further questions.
17
18 F U R T H E R E X A M I N A T I O N
19 BY MR. DEGGINGER:
20 Q. Since you opened the doors, which companies that
21 are paying utility tax, in response to Counsel's last
22 question, that you audited?
23 A. That I've audited?
24 Q. Yeah.
25 A. Well, I couldn't share that information anyway,
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1 but it's -- it would be confidential taxpayer
2 information.
3 Q. So you can't tell me who's paying utility tax?
4 A. I cannot.
5 Q. So I just have to take your word for it?
6 A. That's confidential information. I can't give
7 out taxpayer information.
8 Q. So the answer to the question that Ms. Sand just
9 asked you, you can't tell me what the basis of your
10 answer is?
11 A. I can tell you there are several competitors
12 that offer pre- and post-paid: AT&T, Sprint, Boost,
13 Cricket. There's -- there's several companies that are
14 pre -- could be pre- and post-paid that would be
15 directly competitors with TracFone.
16 Q. But you're not willing to tell me which ones
17 they are?
18 A. I cannot give any specifics. That would be
19 compromising taxpayer confidentiality.
20 Q. Well, I understand that. But Counsel's question
21 has put me at a distinct disadvantage. She says -- she
22 asked you are others that do business like TracFone
23 paying utility tax, and your answer is yes. The problem
24 is when I ask you who they are, you're telling me you
25 can't tell me; is that right?
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1 A. I cannot give out taxpayer -- confidential
2 taxpayer information.
3 Q. So you're refusing to tell me who those people
4 are, which companies they are that were -- would be
5 responsive to the answer to Counsel's last question?
6 A. I --
7 MS. SAND: Objection. Asked and answered.
8 He's already said he can't provide specific taxpayer
9 names, but he is giving his answer sworn to tell the
10 truth.
11 MR. DEGGINGER: Well, I'm sorry, Counsel,
12 but he needs to answer my -- I'm going to ask him the
13 question, and he refuses to answer, that's fine. But
14 I'm asking the question to make the record that this is
15 an inappropriate point of inquiry.
16 BY MR. DEGGINGER:
17 Q. So, Mr. Malone, Counsel asked you whether there
18 are companies like TracFone that were paying utility tax
19 in Renton; correct?
20 A. That is correct.
21 Q. I have asked you: Identify those companies.
22 A. And I provided a list of competitors that would
23 be subject to the utility tax. I cannot give specific
24 companies. That is confidential taxpayer information as
25 to who is paying the tax.
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1 Q. But if I went down the list of the companies you
2 identified and asked if each one of them was paying
3 utility tax, your answer to me would be: I can't tell
4 you the answer to that question, Mr. Degginger; is that
5 right?
6 A. That is correct.
7 Q. All right.
8 When you purchased the -- the phone card that we
9 just identified --
10 A. Uh-huh.
11 Q. -- you received a receipt; correct?
12 A. I did.
13 Q. From Fred Meyer?
14 A. I did.
15 Q. For a product; correct?
16 A. I did.
17 Q. And that product allowed you to have telephone
18 service in a -- in a phone; correct?
19 A. After activation with TracFone it did.
20 Q. And you pay nothing further to activate that
21 telephone?
22 A. That's correct.
23 Q. And that SIM card. There was no other
24 transaction; correct?
25 A. Yes, there was no other money transaction;
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1 that's correct.
2 Q. No further questions.
3 THE REPORTER: Are you ordering the
4 transcript?
5 MR. DEGGINGER: I'm sorry?
6 THE REPORTER: Are you ordering the
7 transcript?
8 MR. DEGGINGER: Probably will. I will let
9 you know before the end of the day.
10 (Deposition concluded at 1:17 p.m.)
11 (Signature waived.)
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1 C E R T I F I C A T E
2
3 STATE OF WASHINGTON
4 COUNTY OF KING
5
6 I, Kathleen Hamilton, a Certified Shorthand
7 Reporter and Notary Public in and for the State of
8 Washington, do hereby certify that the foregoing
9 transcript of the deposition of NATE MALONE, having been
10 duly sworn, on DECEMBER 17, 2020, is true and accurate
11 to the best of my knowledge, skill and ability.
12 IN WITNESS WHEREOF, I have hereunto set my hand
13 and seal this 29TH day of DECEMBER, 2020.
14
15
16 ______________________________________
17 KATHLEEN HAMILTON, RPR, CRR, CCR #1917
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