CITY OF GOLDEN, Colorado and Jeff Hansen, in his official capacity as Finance Director of the City of Golden, Colorado, Petitioners
SODEXO AMERICA, LLC, Respondent.
Certiorari to the Colorado Court of Appeals, Court of Appeals
Case No. 16CA1355
for Petitioners: Williamson & Hayashi, LLC, David S.
Williamson, Mathew M. Munch, Boulder, Colorado
for Respondent: Silverstein & Pomerantz LLP, Neil I.
Pomerantz, Mark E. Medina, Michelle Bush, Denver, Colorado
for Amicus Curiae Colorado Department of Revenue: Philip J.
Weiser, Attorney General, Russell D. Johnson, Assistant
Solicitor General, Denver, Colorado
for Amici Curiae Colorado Higher Education Institutions:
Philip J. Weiser, Attorney General, Stephanie Scoville,
Senior Assistant Attorney General, Denver, Colorado, Jeremy
Hueth, Special Assistant Attorney General, Denver, Colorado
Attorney for Amicus Curiae Colorado Municipal League: Dianne
M. Criswell, Denver, Colorado
Imagine that two students enter a dining hall at the Colorado
School of Mines in the City of Golden. One pays with cash;
the other swipes a "BlasterCard" to use a meal-plan
credit. Sodexo, Mines food service provider, collects sales
tax on the cash transactions and remits the tax to Golden.
Not so when a student swipes a BlasterCard to use a meal-plan
credit. That disparity in tax treatment culminated in this
A little background information about BlasterCards helps to
flesh out the legal dispute. During the time at issue, Mines
loaded each meal-plan students BlasterCard, which is a
students identification card, with an individual meal plan
choice. To use their meal plans, students swiped their
BlasterCards at a dining facility. Sodexo had nothing to do
with loading the students BlasterCards with their meal
plans— that was all Mines. Sodexo also had no way of
knowing if a student had fully paid for his or her meal plan,
and Sodexo had no way of enforcing collections against a
student who hadnt fully paid. Again, that was all taken care
of by Mines. But neither Mines nor Sodexo collected any sales
tax on these meal-plan meals.
When Goldens Finance Department audited Sodexo and
discovered that sales tax for these meal plans had not been
collected, it issued a sales and use tax assessment. Sodexo
protested and lost, so Sodexo appealed to the district court.
The court granted summary judgment for Golden, finding that
Sodexo had engaged in taxable retail sales directly to Mines
students, rather than tax-exempt wholesale sales to Mines.
Undeterred, Sodexo appealed again. This time, a unanimous
division of the court of appeals reversed the judgment of the
district court, concluding that there were two sales
transactions at issue: one between Mines and Sodexo, and the
other between Mines and its students. The division further
concluded that Mines and Sodexo were engaged in tax-exempt
wholesale transactions. Accordingly, the division remanded
for entry of judgment in Sodexos favor.
We granted Goldens request to review the divisions
decision. But, having done so, we agree with the division
that two transactions took place: one between Sodexo and
Mines, another between Mines and its students. Like the
division below, we conclude that Sodexo sold the meal-plan
meals to Mines at wholesale, and, accordingly, these
transactions were exempt from taxation under the Code. We
therefore affirm the judgment of the court of appeals.
I. Facts and Procedural History
Mines is a public post-secondary education institution. ...