By Zachary Atkins and Pilar Mata

A California Court of Appeal held that a mobile telecommunications service provider could pursue refund actions against local taxing authorities in California without first having to refund the disputed taxes to its customers. Pursuant to a settlement agreement, New Cingular, the provider, filed refund claims against 132 California cities and two counties on behalf of its customers for taxes erroneously charged on sales of Internet access services. The local taxing authorities argued that New Cingular did not have standing to bring refund suits on its customers’ behalf because New Cingular failed to refund the amounts in question to customers before filing refund claims in accordance with local ordinances. The court disagreed and held that local “refund first” ordinances are preempted by the state Government Claims Act to the extent they purport to create additional preconditions on the filing of refund claims for local taxes and that New Cingular’s claims substantially complied with the requirements of the Government Claims Act. The court also held that New Cingular had standing because it had a direct interest in seeking the refunds as a result of the settlement agreement—an enforceable contract that required New Cingular to seek the refunds on behalf of its customers—and there was no possibility that New Cingular would be unjustly enriched. Allowing New Cingular to proceed with its refund suit also ensured that the local taxing authorities would not be unjustly enriched with erroneously collected sales taxes. The court’s opinion is consistent with the New Jersey Tax Court’s recent opinion in New Cingular Wireless PCS, LLC v. Director, Div. of Taxation, No. 000003-2012, 2014 WL 714769 (N.J. Tax Ct. Feb. 21, 2014), which Sutherland covered here. Sipple v. City of Hayward (Apr. 8, 2014, B242893) ___ Cal.App.4th ___ [2014 Cal. App. LEXIS 313].