Class Action Lawsuit Filed Over Unlawful Sales Tax on COVID-19 Face Masks

A group of consumers have filed a class action lawsuit against nine national retail chains for charging sales tax on face masks in Pennsylvania, something they claim is unlawful under current regulations.

Governor Tom Wolf declared an emergency disaster in Pennsylvania on March 6 due to the coronavirus pandemic. The state’s Department of Revenue later published guidance saying protective face masks and ventilators were exempt from the commonwealth’s 6% sales tax while the declaration is in effect.

According to the class action lawsuit, though, consumers say they’ve been charged the tax on face masks purchased as recently as Nov. 18.

The consumers, seven of them, joined together to file the class action lawsuit in state court in Allegheny County on Nov. 23. They are suing Big Lots Inc., Dollar General Corp., Giant Eagle Inc., Jo-Ann Stores LLC, Ollie’s Bargain Outlet Holdings Inc., The Home Depot Inc., Tuesday Morning Corp., Ulta Beauty Inc. and Walmart Inc.

The plaintiffs are Christina Duranko, Gerry McLean, Mary Marous, Joyce Wojton, Beverly Evans, Jennifer Pollock and Martha Bailey.

According to the lawsuit, the plaintiffs want to represent “hundreds of thousands” of other Pennsylvania shoppers who were also charged sales tax by the defendants on face masks purchased in-stores and online.

The case is the second such action filed in the same court by a similar group of consumers represented by the same attorney — Kevin W. Tucker — something specifically noted in the new filing. Daniel Garcia, the lead plaintiff in the first case, filed his class action lawsuit Oct. 22 against 15 other retailers for charging sales tax on protective face masks.

After the Garcia complaint was filed, the Pennsylvania Department of Revenue updated its guidance, confirming “masks (cloth and disposable) are exempt from Pennsylvania sales tax.”

Originally the exemption was based on the fact that the masks could now be considered medical equipment, but at this stage of the pandemic, they could also be considered “everyday wear/clothing as they are part of the normal attire,” the new class action lawsuit says.

Clothing is not subject to Pennsylvania sales tax.

At least two of the defendants in the Duranko case — The Home Depot and Tuesday Morning — charged some of the plaintiffs sales tax on the masks they bought after the revenue department’s updated guidelines were issued, the class action lawsuit claims.

Duranko and the other lead plaintiffs claim the companies they are suing have violated the state’s unfair trade practices and consumer protection law. They have asked for a jury trial and are seeking up to $100 in damages per violation and additional awards for the proposed Class.

The retailers that have been named as defendants in the Garcia class action lawsuit are American Eagle Outfitters, Foot Locker, Kohl’s, J. Crew, The Gap, Hot Topic, Carter’s, Chico’s, Express, Francesca’s, Gabriel Brothers, Genesco Inc., Tapestry Inc., Vera Bradley Inc. and Walgreens.

In both class action lawsuits, the consumers are arguing the stores “knew or should have known that it was impermissible to charge or collect Pennsylvania sales tax on protective face masks following Governor Wolf’s emergency declaration.”

Are you a consumer in Pennsylvania who has been charged sales tax on protective face masks during the coronavirus pandemic? Tell us about it in the comment section below.

Lead plaintiff Duranko and the proposed Class Members are represented by Kevin W. Tucker of East End Trial Group LLC.

The Sales Tax Class Action Lawsuit is Christina Duranko, et al. v. Big Lots Inc., et al., Case No. unknown, in the Court of Common Pleas of Allegheny County, Pennsylvania.

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