Shoplifting and Sales Tax (Part 1)

On December 21, 2022, a three-judge appellate panel decided the Middlesex County case of State v. Eric Burnham. The principal issue under N.J.S.A. 2C:20-11 was whether sales tax could be calculated to determine for the value of goods for the grading of a shoplifting offense.

Temporarily assigned Appellate Division Judge Marczyk wrote for the panel in relevant part: To determine whether sales tax is properly included in calculating the full retail value under the shoplifting statute, it is useful to examine the statutory gradation scheme for theft. Theft constitutes a crime of the third degree if “the amount involved exceeds $500 but is less than $75,000” and a crime of the fourth degree if “the amount involved is at least $200 but does not exceed $500.” Notably, the “amount involved” is defined as “the fair market value at the time and place of the operative act.” N.J.S.A. 2C:1-14(m). Importantly, although the shoplifting statute is silent as to whether sales tax should be considered in determining the full retail value, the general theft statute provides the “amount involved” in a theft “shall include, but shall not be limited to, the amount of any State tax avoided, evaded or otherwise unpaid, improperly retained or disposed of.” N.J.S.A. 2C:20-2(b).

In short, the Legislature determined in adopting the theft statutes the amount of sales tax should be considered in determining the “amount involved” in the theft. However, the Legislature made no such determination in enacting the shoplifting statute. We generally do not assume the Legislature intended anything other than the plain language of the statute. See, e.g., Zabilowicz v. Kelsey (2009) (“The Legislature knows how to draft a statute to achieve a result when it wishes to do so.”). Therefore, we believe the better approach is to interpret “full retail price” to mean the pre-tax price.

The State appears to have a good argument here since there is overlap between the shoplifting and theft statutes and shoplifting is the situation that would naturally involve the cost of goods plus sales tax. If they succeed in having the Supreme Court reverse this appellate decision, it will not bode well for the potential “permanent” assignment of the temporarily-assigned judge who authored the opinion.