Allegheny lawsuit claims popular retailers improperly taxed face masks

An Allegheny County man is suing 15 different retailers — which combined have billions of dollars in sales last year — contending they improperly charged sales tax for the face masks they’ve been selling during the covid-19 pandemic.

Daniel Garcia, the only named plaintiff, seeks class-action status to apply to all those consumers who purchased masks and were charged sales tax.

The complaint names as defendants American Eagle Outfitters, Carter’s, Chico’s, Express, Foot Locker, Francesca’s, Gabriel Brothers, Genesco, Hot Topic, J. Crew, Kohl’s, Tapestry Inc, The Gap, Vera Bradley and Walgreens Boots Alliance.

Messages left with each defendant were not immediately returned.

According to the Pennsylvania Department of Revenue, protective face masks sold at retail are exempt from state sales tax, based on the governor’s emergency disaster declaration issued on March 6.

The department said on its website that masks sold at retail would typically be subject to sales tax.

“However, during the emergency disaster declaration, the Department of Revenue considers these protective masks to be akin to medical equipment. Pennsylvania sales tax is not imposed on certain medical equipment or supplies, such as disposable surgical masks or ventilators.”

In Pennsylvania, the state sales tax is 6%, and in Allegheny County, an additional 1% is added on. Items exempt from state sales tax include food, most clothing and medications.

A spokesman for the Department of Revenue said the office was reviewing the complaint.

The lawsuit, filed in Allegheny County Common Pleas Court, said that the defendant businesses knew or should have known they could not collect sales tax on the masks.

The complaint lists each instance where Garcia was charged sales tax when he purchased a mask.

They included:

• paying $1.05 in sales tax on a $14.95 mask he purchased from American Eagle on Sept. 27
• paying $0.21 in tax for a $3 mask at Carter’s on Sept. 26
• paying $1.05 in sales tax for a $15 mask at Chico’s
• paying $0.56 tax for an $8 mask at Express on Sept. 29
• paying $0.91 in task for a $13 mask at Foot Locker on Sept. 29
• paying $0.42 in tax for a $6 mask at Francesca’s on Sept. 27
• paying $0.21 tax for a $2.99 mask at Gabriel Brothers on Sept. 27
• paying $1.05 in tax on a $15 mask at a Genesco retail store on Sept. 29
• paying $0.90 in tax on a $12.90 mask at Hot Topic on Sept. 29
• paying $1.26 in tax on an $18 mask on Sept. 27 from J. Crew
• paying $0.49 in tax for a $6.99 mask from Kohl’s on Sept. 26
• paying $0.63 in tax for a $9 mask at Tapestry on Sept. 27
• paying $0.87 in tax for a $12.50 mask from Gap on Sept. 27
• paying $0.56 in tax for an $8 mask at Vera Bradley on Sept. 29
• paying $0.63 in tax for an $8.99 mask from Walgreens on Oct. 22

The lawsuit seeks class-action status for all those who purchased face masks from those businesses since March 6 and paid sales tax for them.

Because there are an estimated 12.8 million people in Pennsylvania, and everyone was ordered to wear a mask in public since the governor’s orders in the spring, the lawsuit estimates the class of plaintiffs could number in the hundreds of thousands.