The New York State Attorney General has argued that Sprint’s failure to pay at least $100 million in owed sales taxes to New York taxing authorities may leave its customers in the state on the hook for past taxes, interest, and fees the company never paid.

As the state continues its lawsuit against Sprint-Nextel for what it argues is deliberate underpayment of New York sales tax, Sprint’s lawyers argued Thursday that the entire case should be dismissed because the state is selectively interpreting state and federal law.

The case originally began as a whistleblower action through a private company, Empire State Ventures, which is seeking a 25% share of any lawsuit proceeds. N.Y. Attorney General Eric Schneiderman is seeking $300 million in damages from Sprint for knowingly violating tax laws.

A review of the lawsuit shows there are serious implications for Sprint’s customers in New York if the company loses the suit or fails to pay sales taxes the state claims are owed.

Over three million current and former Sprint customers could be liable for sales tax underpayments representing a portion of their monthly bills dating back to 2005, potentially including accumulating interest charged at 14.5% annually, and penalties amounting to double the amount of the unpaid taxes or up to 30 percent of the underpayment.

Sprint has also misled millions of New York customers who purchased Sprint flat-rate plans. In its customer contracts, on its website and elsewhere, Sprint represented that it would collect and pay all applicable sales taxes. Yet Sprint did not, and it concealed this fact from its New York customers. As a result, Sprint exposed these customers to the risk of having to pay the unpaid taxes, for they are also liable under the law if Sprint fails to pay.

Although Sprint misrepresented how it would handle sales taxes, it has locked its customers into contracts with early termination fees. The customers must remain in these contracts sold under false pretenses unless they pay hundreds of dollars to Sprint.

Schneiderman

Schneiderman’s office appears to have a strong case, with evidence showing Sprint allegedly conspiring to undertax customers using an arbitrary formula to gain a competitive advantage over other wireless carriers with the promise of a lower monthly bill, in part because the company was not collecting the proper amount of state sales tax.

The lawsuit claims Sprint repeatedly ignored warnings from state taxing authorities, including senior tax officials, that declared Sprint’s creative way of determining applicable taxes was putting the company at serious risk of adverse tax department action.

That adverse action came in April when the state filed the lawsuit against Sprint seeking back taxes and triple damages.

A careful reading of the lawsuit reveals just how much bureaucracy America’s wireless industry maintains to seek out any edge it can find against regulators, tax authorities, and local, state, and federal elected officials.

Sprint, the third largest wireless company in the country, can afford to maintain that bureaucracy with $33 billion in annual revenues partly at stake.

Wireless Industry’s Tax Employees Go to Vail to Ski Discuss Tax-Avoidance Strategies

The wireless industry employs hundreds of workers who spend their days pouring over tax laws in all 50 states looking for loopholes, strategies, and creative solutions to the ongoing problem of paying local, state, and federal taxes. Sprint, a considerably smaller wireless carrier than either Verizon or AT&T, still has the resources to maintain more than 100 workers in their State and Local Tax Group. It includes a well-defined management chain, with an assistant vice-president that runs the unit reporting to Sprint’s vice president of Tax, who, in turn, reports to Sprint’s chief financial officer.

These employees, and similar ones working at every other wireless phone company, try to figure out how to pay the least amount of owed tax possible, and kick tax strategies around in regular sessions and conferences at posh resorts in places like Vail (come for the corporate meeting, stay for the skiing), Colorado.

At the 2002 Communications Tax Executive Conference in Vail, Sprint executives told other wireless carriers that tax avoidance strategies like “unbundling” posed risks of audits by taxing authorities and litigation.

The wireless industry sends their tax experts to posh resorts in Vail, Colorado to discuss tax-avoidance strategies.

The following year, a Sprint executive turned up at another industry-backed conference run by “the Wireless Tax Group,”  alerting other wireless companies that “unbundling for taxes causes significant assessment risk.” He told the group that his “marching orders” at Sprint were to “mitigate tax issues by pursuing legislation or pre-audit agreements that allow for component taxing.”

In Schneiderman’s view, Sprint never followed those marching orders in New York.

In fact, the lawsuit argues even as Sprint was lecturing other phone companies about the importance of being conservative when dealing with tax authorities, the company was conspiring to use its own creative tax interpretations to undercut their competitors with a lower monthly cell phone bill.

How to Lower Your Prices Without Risking Profits

The technique Sprint uses to this day to hand customers that lower bill is based on selectively applying sales taxes only to certain portions of a customer’s voice plan. Sprint is the only company engaged in this practice in New York. Verizon, T-Mobile, Cricket, AT&T, and MetroPCS won’t go near the concept.

New York tax law says that phone companies must collect taxes on the monthly voice plans wireless companies sell customers. If Sprint sells you 450 minutes a month for $39.99 a month, New York taxing authorities expect customers will be charged the prevailing state and local tax rate on the fixed amount of $39.99 each month. Only Sprint does not do this. Sprint leverages federal rules which state that telephone calls placed to numbers outside of the state (also known as an “interstate call”) cannot be taxed. Therefore, in Sprint’s view, customers deserve a tax break for those interstate, non-taxable calls.

But Sprint does not actually review individual calling records to figure out what specific out-of-state numbers were called. Instead it created what New York officials argue is “an arbitrary formula” to guesstimate how much the average customer spends talking to in-state vs. out-of-state numbers. But those percentages varied wildly from 2005 to the present day, with different amounts for Sprint-Nextel customers living in upstate and downstate New York:

• July 2005-October 2008: Sprint did not pay state or local sales taxes on 28.5% of its fixed monthly voice service charge;
• April 2006-October 2008: Nextel of New York did not pay state or local taxes on 13.7% of its fixed monthly voice service charge;
• May 2006-October 2008: Nextel Partners of Upstate New York did not pay state or local taxes on 15% of its fixed monthly voice service charge;
• October 2009-Present Day: Sprint does not pay state or local taxes on 22.5% of its fixed monthly voice service charge.

Here comes the taxman.

In January 2005, an internal Sprint memo obtained by New York State found the company could save $4.6 million per month using this tax avoidance strategy, without costing the company a cent in profits.

It implemented the strategy later that summer.

New York’s lawsuit makes it clear the company was warned about the practice before the suit was filed:

Sprint continues to not collect and pay New York state and local sales taxes on the full amount of its receipts from its fixed monthly charges for wireless voice services, despite being specifically informed of the illegality of this practice by a field-auditor of the New York Tax Department in 2009, and then, in 2011, by a senior enforcement official of the New York Tax Department.

Customers Caught in the Middle?

As the case winds its way through court, New York has informally put Sprint customers on notice they could be held responsible for the unpaid taxes and penalties if Sprint reneges on the owed amounts. Schneiderman’s office recognizes customers are caught in the middle, partly because Sprint decided to keep the tax changes “secret” to keep customers off the phone to Sprint customer service:

[…] In its contracts with these customers, on its website and elsewhere, Sprint represented that it would collect and pay all applicable sales taxes on its calling plans. […] Sprint’s representations in the contracts, on its website and elsewhere were false because Sprint knew it would not collect and pay the applicable sales taxes in New York.

Contrary to its promises, Sprint failed to collect and pay sales taxes on substantial portions of the fixed monthly charges for voice services under its flat-rate calling plans. As a result of this non-payment, Sprint left its New York customers liable for those unpaid amounts of sales taxes under New York law.

At no point did Sprint disclose to its New York customers that it was leaving them liable for the sales taxes that Sprint failed to collect from the customers and pay to the government, as promised.

Before Sprint began unbundling, members of its State and Local Tax Group and its marketing group considered in the early part of July 2005 whether to communicate with customers about the fact that Sprint was unbundling and that the unbundling would affect taxes for some customers. They jointly opted not to communicate the change. Sprint’s Director of External Tax was concerned that disclosing the information would “drive too many calls” to Sprint’s customer care division.

In November 2005, just months after Sprint began unbundling, a Sprint employee in the Customer Billing Services department questioned a member of Sprint’s State and Local Tax Group about whether unbundling was “presented to the customer as part of the Subscriber agreement, shown in the invoice and/or available to Customer Care Rep.” The response was simply that “we have not educated our customers on how we are de-bundling transactions for their tax relief.”

Sprint continues to misinform its current and prospective customers about sales taxes, and to subject them to undisclosed sales tax liability even today.

Sprint’s position in court is that New York’s tax laws give the company the option of unbundling its tax obligations and that the state was trying to collect money it was not owed.

“The New York Attorney General’s complaint seeks to impose liability for practices that do not violate New York law,” said Sprint’s response to the lawsuit.

Luckily for Sprint’s tax experts, many states foreclose the possibility of creatively escaping taxes by imposing a “gross receipts tax” on the total gross revenues of a company, regardless of their source. That makes it difficult, if not impossible to escape the kind of sales taxes Sprint has been maneuvering around for nearly a dozen years in New York. With fewer loopholes to find, that leaves the wireless industry’s tax experts more time on the ski slopes.

It is safe to assume Sprint hopes for a positive outcome of the case, if only to avoid the inevitable avalanche of customer complaints from New York customers who might find a notice of apparent tax liability in their mailbox one day in the future.

When a company like Comcast grows so big, it no longer cares whether its marketing claims are true or false, perhaps it is time to put those claims to the test in court or before a state attorney general for review.

Recently, Comcast’s claim it runs the fastest Internet Service Provider in the nation came under scrutiny by the Better Business Bureau. The simple truth is, Comcast is not the fastest ISP in the nation — not even close. But because PC Magazine ran a limited test of some national broadband providers and found Comcast barely making it to the top, the cable giant has been running ads across the country that are disingenuous and incomplete at best, completely misleading and false at worst.

Phillip “Comcast is not too big to deserve a FAIL“ Dampier

The National Advertising Division of the BBB, a self-regulating industry-controlled body, found the advertising deceptive, which says a lot for a group that lives or dies on the whims of the industries that support its operations.

NAD previously determined that Comcast cannot, based on its current offerings, make an unqualified claim in national advertising to be faster than the competition. NAD noted that while Comcast is the fastest Internet option for 94 percent of the 52 million households in its competitive footprint, it is not the fastest where Verizon FiOS is available.

Consumers need deep pockets to read the actual report that mildly criticizes Comcast. The NAD keeps the public out of its business with a subscription rate of $550 a year to read detailed individual case reports. We learned about the case from one of our readers who shared a copy.

Among the false claims Comcast is still making:

• “It’s official.  We’re the fastest.” — Officially, Comcast is not the fastest.
• “…the fastest downloads available.” — False.
• “FiOS Does Not Live up to Expectations….With Speeds of Up to 105Mbps, XFINITY was rated as the fastest Internet provider in the nation by PC Magazine.” — But FiOS speeds are faster than Comcast. PC Magazine did not test Verizon FiOS.

Comcast agreed to consider making changes to their advertising to comply, but that now appears to be a non-starter.

In Chattanooga, Tenn., EPB Fiber broadband beats the pants off Comcast. No, it’s actually worse than that. EPB embarrasses Comcast’s comparatively slow broadband service. While Comcast was looking for a way to manipulate customers into using its Xbox online video app to avoid their unjustified usage cap, EPB customers were bypassing that problem altogether by choosing EPB’s fiber to the home service that doesn’t have usage caps and delivers speeds up to 1Gbps.  Comcast, (remember they are “America’s fastest”) tops out at 105Mbps.

One would think Comcast would be hurrying their blatantly false advertising off the air and out of sight in Chattanooga, but the company has refused.

The Times Free Press reports Comcast won’t be making any changes to their ads, and has actually doubled-down with more blatantly false marketing claims. Why? Because EPB is too small of a player for Comcast to be concerned with telling the truth:

Jim Weigert, vice president and general manager of Comcast in Chattanooga, said the request won’t apply to this area and advertising will stay the same.

“I don’t see any changes at all,” he said. “Our use of that designation as the fastest ISP and fastest commercial ISP is still the same and will still be used the same as it is today.”

Weigert said local networks such as EPB, which delivers maximum download speeds about 10 times faster than those of Comcast, is too small of a player to affect the region’s advertising or PC Magazine‘s designation.

“Those awards exist, and we just need to make sure we’re using it properly and quoting it properly,” he said. “It doesn’t reference EPB at all because they’re not national. They’re not big enough to get that attention.”

In other words, actual facts about broadband speed don’t matter. With standards like this, it is only a matter of time before we’ll be seeing program length commercials for snake oil.

Beyond the fact Comcast is morally and ethically wrong here, I’m not sure I would want my company admitting to customers truth should come in second. With that kind of attitude, Comcast customers should put their wallets in their front pockets, leave the kids home and lock their car doors before visiting a Comcast Cable Store.

Deborah Dwyer, public relations supervisor for EPB, notes the Comcast ads are self-serving and “cause pretty significant confusion among the public.”

At least the public that still believes what Comcast Cable tells them represents the truth.

Chattanooga, Tenn. is teaming up with U.S. Ignite to leverage America’s first Gigabit broadband city as the home of super high speed broadband innovation.

Municipally-owned EPB’s fiber to the home network is already attracting big businesses and high tech jobs to southeastern Tennessee, but now it will become an incubator for America’s next generation of broadband applications and services. U.S. Ignite will use EPB Fiber’s network to help foster the creation of new digital applications that will transform health, education, public safety, and manufacturing and help keep America a leader in high tech innovation.

It took a public, community-owned utility with the vision of an American fiber optic future to make this possible. Cable and phone companies have unilaterally decided there is no need for gigabit broadband. Will community broadband and marketplace game-changers like Google ultimately be the salvation of America’s high speed future?

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/Chattanooga US Ignite.flv[/flv]

Learn more about Chattanooga’s broadband success story through this video, which also introduces U.S. Ignite’s new project. (3 minutes)

Did you know privately-run cable companies can get public tax subsidies, grants, and even loans at favorable interest rates? When opponents of community broadband complain government-funded broadband competes against the private sector, the hidden truth is many “private sector” companies also enjoy benefits at the public’s expense.

Cablevision is the latest example, reports the Star-Ledger. When the company noted its lease for a call center in Newark was set to expire in two years, the Economic Development Authority responded, approving a $37.5 million Urban Transit Hub tax credit for the private cable company.

“Cablevision has a long-standing and important relationship with the state of New Jersey and the city of Newark, and a commitment to local hiring, local jobs and supporting the local economy,” said Cablevision spokesman Jim Maiella. “We are pleased to be investing in a new state-of-the-art call center, larger than our existing facility, closer to mass transit and modernized for our more than 500 Newark employees.”

New Jersey is currently mired in a major budget battle, trying to find enough revenue to sustain a general tax cut for New Jersey residents.

If you don’t believe Verizon Wireless’ newest family-share plans work for you, you are not alone.

More than a few Verizon Wireless customers are in open revolt on the company’s interactive forum, and some are preparing to leave a wireless company they have stayed with for up to 15 years. In a word, the consensus from these vocal customers is: “enough.”

Customer ‘bgudgel‘ explains why:

I have been a loyal Verizon customer for seven years now. I have defended them and recommended them to friends and family, but I feel my time as a Verizon customer has come to an end. The simple reason is that Verizon no longer sees me as a valued customer. I am just a source of income to them. I was prepared to swallow the $30 upgrade fee, but the new shared data plans are the final straw.

You can argue pricing and details all you want, but the simple fact is this – Verizon is clearly not interested in providing great service at fair prices to their customers anymore. The want to provide great service at the highest possible price, and they are taking pages out of the Big Cable handbook to do it – requiring services you don’t want/need in order to get the service that you actually do. And on top of that, the price levels they have chosen for data thresholds and adding additional lines are completely indefensible.

Verizon, I have heard your message loud and clear. You no longer care about me as a customer, so I will gladly take my business somewhere else. I do not know if I can get a better deal anywhere else, but I will no longer give money to you based on the simple principle that you have no respect for your loyal customers. It feels like you are just using us, and that is when I say goodbye.

A California customer considers this the last straw for Big Red:

I too have been a Verizon customer for years. But this final slap in the face is it for me. First, the stupid $30 “upgrade” fee for the “privilege” of buying a new phone from Verizon, and now this absurdity.

I am researching other companies’ prepaid plans now, and I fully intend to be gone within a couple of weeks, at most. And I won’t encounter cancellation penalties as our 3-line plan is more than 2 years old.

I have grown weary of “data” and its rising costs and caps, and will purposely look for a voice/text plan only. Enough.

And Lyondellic tallies up Verizon’s nickle-and-diming customers over the past year:

During my year with Verizon, I have seen a failed attempt to impose a $2 ‘convenience’ fee for paying my bill online. I have also seen a $30 fee added for device upgrades. Then there was the February 2012 change in the customer agreement that does not limit so-called ‘Network Optimization’ to 3G devices, which also allows throttling (let’s call it what it is) during the current and NEXT billing cycles. Verizon seems to have no issues with someone getting full 4G LTE speed, as long as they pay for it by the GB, but apparently feel that those of us with unlimited data plans should be considered data hogs that can be slowed down into billing cycle that has not even started. So network optimization in Verizon-speak means freeing up bandwidth for their pay by the GB customers by throttling customers with grandfathered unlimited data plans that are using their devices in a manner that is consistent with their agreements! Finally, we are told about the cries for family shared-data plans. I figured Verizon might do something that would make it attractive for me to move into a tiered data plan, boy was I ever wrong.

Now Verizon wants to charge $40 per smartphone to actually use the shared-data plans! So, for someone who is paying ~$87 per month for a smartphone with unlimited data, the cost per month will now be somewhere around $120 for the 6GB plan! How are these plans a good thing for either new or existing customers?!? I was considering paying full price to upgrade to a Galaxy Nexus in order to keep my unlimited data plan, but I have changed my mind. I can order the Galaxy Nexus from Google for $399 and use a prepaid, no-contract plan from T-Mobile plan that provides me with 100 minutes, unlimited text messaging and 5GB of data at 4G speeds for $30 month. Since I do not make a lot of calls on my phone, why would I want to continue to pay Verizon $87 per month without subsidized device upgrades, which would move me into a $120 month plan?

So I look at this as a simple lesson in economics. I can pay the ETF, buy a GNex and still come out ahead by moving to T-Mobile. The beauty of this is that I will also be taking money away from Verizon, as they clearly want to treat me like a second-class customer that needs to fork over more of my money. So I will vote with my dollars and send a clear message to Verizon that their conduct is unacceptable. I encourage others here to consider doing the same. Your speed may not be blazing fast with T-Mobile, but neither will be the speed that money flies out of your wallet or purse. My .02 cents!