LOEFFLER v. TARGET CORPORATIONAppellants’ Supplemental Reply BriefCal.April 26, 2013 PUBLIC JUSTICE SUPREME COURT RIGHTING WRONGS FILED APR 26 2013 April 26, 2013 Frank A. McGuire Clerk t Hon.Tani Cantil-Sakauye, Chief Justice Deputy Associate Justices Supreme Court of the State of California 350 McAllister. Street RECEIVED San Francisco, CA 94102-4797 | APR 2 Re: Loeffler, et al. v. Target Corporation 6 2013 Ss Court No. $173972 upreme our No. CLERK SUPREME COURT Dear Chief Justice Cantil-Sakauye and Associate Justices: While the parties agree that primary jurisdiction is inapplicablehere, Target’s factual assertions that there is a “mechanism for Plaintiffs to obtain a decision by the State Board ofEqualization”-——and even “remedies Plaintiffs could have pursued with the Board”—demanda response. Target letter ofApr. 24, 2013 at 2. These claims are pure conjecture andare directly contradicted by the available facts and authority. First, Target and the Board have already concededthat non-taxpayers such as Plaintiffs do not have any mechanism by whichto file a claim before the Board. Target’s Answering Brief 17; Board Amicus Brief 3 (contrasting consumers paying sales tax reimbursement with “use tax taxpayers and federal purchasers in sales tax transactions, both ofwhom already have available administrative remedies”) (emphasis added). Because they lack standingto file a claim before the Board, it follows that they cannot obtain a decision on such a claim. As Plaintiffs explained previously, the Board has nolegal obligation to respond to random complaints from non-taxpayers. Pls.’ Opening Br. on the Merits 9-11, 39- 46; Reply Br. 29-30. (In contrast, the Tax Code requires the Board to act on refund claims by retailers within six monthsor be subject to suit. See Cal. Rev. & Tax Code § 6934.) Second, Target has failed to cite a shred of evidence showing that non- taxpayers such as Plaintiffs can obtain any other “remedies” from the Board. For example, Target contends that Plaintiffs can “complain to the [Board] and obtain vast Coast office refunds.” Target’s Br. on the Merits 23. But the only resource Targetcites in 1825KStreetNW,Suite200 support of this bold claim turns out to be a 12-page document,last updated in ph: 202-797-8600 2008,that is a far cry from proving that a complaint process for non-taxpayers examen Public Justice, P.C. West Coast Office 555 12th Street, Suite 1230 Oakland, CA 94607 ph: 510-622-8150 fax: 510-622-8155 468962_1.DOCX www.publicjustice.net Ene Chief Justice Cantil-Sakauye Associate Justices April 26, 2013 exists. Rather, it contains one-sentence answers to a handful of questions such as, “I bought a sweater and paid the store extra to gift-wrap it. Why wasthegift- wrapping charge taxed?” Pls.’ Resp. to Target’s Amici at 32 & n. 11. Likewise, the only authority Target cites for its broad claims about extensive resourcesfor consumersare not actually for consumersat all, but for taxpayers wishing to “obtain a seller’s permit” or take care of other needs that they, not their customers, might have. Pl.’s Response to Amici at 32 n. 11; see generally id. at 32-35 (debunking other supposed mechanisms by which consumers can obtain remedies from the Board). Lastly, Target’s claim that Plaintiffs have the “remedy”of contesting the “facial validity of existing Board regulations” on sales tax reimbursementis mystifying given that Plaintiffs do not contest the validity of any ofthe Board’s regulations. Rather, Plaintiffs’ claims depend upon the validity ofthose regulations, and Plaintiffs have always contendedthat the Board’s regulationsare clear and leave no doubt that Target’s imposition of sales tax reimbursement on the transactions at issue in this case was unlawful. See Pl.’s Response to Amiciat In sum,Plaintiffs strongly urge the Court not to accept Target’s factual claims about Plaintiffs’ “remedies” before the Board at face value. Sincerely, Leslie A. Bailey Staff Attorney Public Justice Counsel for Plaintiffs/Appellants PROOF OF SERVICE I, Kathleen Morris, declare as follows: I am employed in the County ofAlameda, State of California. I am over the age of eighteen and nota party to the within action. My business address is 555 12™ Street, Suite 1230, Oakland, California, 94607. . On April 26, 2013, I served the foregoing documentdescribed as: Letter Brief Addressing the Primary Jurisdiction Doctrine on the interested parties in this action as follows: . Miriam Vogel Samantha Perrette Goodman Morrison & Foerster, LLP . Morrison & Foerster, LLP 555 W. Fifth Street, Suite 3500 555 W.Fifth Street, Suite 3500 Los Angeles, CA 90013-1080 Los Angeles, CA 90013-1080 Attorneysfor: Target Corporation, Attorneysfor: Target Corporation, _ Defendant and Respondent Defendant and Respondent _ David Frank McDowell Morrison & Foerster, LLP 555 W.Fifth Street, Suite 3500 Los Angeles, CA 90013-1080 Attorneysfor: Target Corporation, Defendant and Respondent [X] BY MAIL: Byplacing a true copy thereof enclosed in a sealed envelope addressed as above, with postage thereon fully prepaid in the United States mail, at Oakland, California. I am readily familiar with the firm’s practice for collection and processing of correspondence for mailing. Underthat practice, it would be deposited with the US Postal Service on the same day with postage thereon fully prepaid at Oakland, California, in the ordinary course of business. I am aware that on motion ofthe party served, service is presumedinvalid if the post6al cancellation date or postage meter date is more than one day after the date of deposit for mailing containedin this affidavit. CCP § 1013a(3). I declare under penalty ofperjury underthe laws ofthe State of California that the foregoingis true and correct. Executed on April 26, 2013, at Oakland, California. WHNez Kathleen Morris 468962_1.DOCX
