Peck

I. BACKGROUND

Appellant is a former employee of Cingular. During his tenure with Cingular, Appellant was provided with Cingular wireless service free of charge. Upon resigning his employ- ment and prior to the filing of this lawsuit, Appellant pur- chased wireless service from Cingular. Appellant’s invoice from Cingular included a 31-cent line item charge labeled “State B&O Surcharge” (“B&O Surcharge”). The Revised Code of Washington (“RCW”) 82.04.220 imposes a business and occupation tax (“B&O Tax”) on parties conducting busi- ness in the State of Washington. This tax is levied on the busi- ness itself:

It is not the intention of this chapter that the taxes herein levied upon persons engaging in business be 9996 PECK v. CINGULAR WIRELESS construed as taxes upon the purchasers or customers, but that such taxes be levied upon, and collectible from, the person engaging in the business activities herein designated and that such taxes shall constitute a part of the operating overhead of such persons.

RCW 82.04.500. It is clear from Appellant’s Cingular invoice that Cingular chose to pass this charge on to consumers through a line item charge on consumers’…