State, Department of Revenue v. Private Truck Council of America, Inc.

531 So. 2d 367, 13 Fla. L. Weekly 2112, 1988 Fla. App. LEXIS 4041, 1988 WL 92985
CourtDistrict Court of Appeal of Florida
DecidedSeptember 8, 1988
DocketNo. 87-1428
StatusPublished
Cited by2 cases

This text of 531 So. 2d 367 (State, Department of Revenue v. Private Truck Council of America, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State, Department of Revenue v. Private Truck Council of America, Inc., 531 So. 2d 367, 13 Fla. L. Weekly 2112, 1988 Fla. App. LEXIS 4041, 1988 WL 92985 (Fla. Ct. App. 1988).

Opinion

NIMMONS, Judge.

The State of Florida Department of Revenue (DOR) appeals from a final judgment declaring Section 207.004(5)(d), Florida Statutes unconstitutional as an unlawful burden on interstate commerce in violation of the Commerce Clause of Article I, Section 8, Clause 3, of the United States Constitution. We affirm.

The State of Florida imposes several taxes and fees on motor carriers that operate within the state. The principal taxes are fuel taxes, which are imposed oh the purchase or consumption of fuel within the state. Chapters 206 and 207, Florida Statutes. These taxes are paid by all motor carriers, including Florida-based carriers, regardless of the state of registration of the vehicles.

In addition, Florida imposes “retaliatory” taxes and fees solely on motor carriers whose vehicles are registered in certain states other than Florida. Section 207.-004(5)(d), Florida Statutes. Many of these foreign carriers subject to the tax are members of the appellee, Private Truck Council of America, Inc. (PTCA). Section 207.-004(5)(d) provides:

Any motor carrier that registers in this state under this chapter whose base state imposes a regulatory fee, a highway use tax, a road tax, or another third-structure fee, including, but not limited to, a license fee similar to that imposed under chapter 320 or any type of regulatory fee or tax under which payment is required as a condition to the operation of a commercial motor vehicle on the public highways of that state, on Florida-based carriers is subject to the same tax or regulatory fee as that imposed by the base state on the Florida-based carriers on the vehicles which the motor carrier uses in this state.

Section 207.004(5) is designed to retaliate against so-called “third-structure taxes”1 which are imposed by certain states on all motor carriers operating in those states, including Florida-registered carriers, and to which Florida objects. The statute imposes a retaliatory “mirror” tax on carriers whose vehicles are registered in those states and operate in Florida. For example, because Arizona enacts a mileage tax of eight cents per mile on every vehicle over 75,000 pounds gross weight operating in Arizona, wherever registered, Section 207.004(5)(d) imposes the identical tax again on each Arizona-registered vehicle that comes into Florida.

The most important feature of the Florida taxes for purposes of this case is that they are not imposed on vehicles registered in Florida. Instead, they are imposed solely on carriers who register their trucks in the twenty-one other states that impose third-structure taxes on vehicles operating in those states, including Florida-registered vehicles. As acknowledged by DOR, the purpose of Section 207.004(5)(d) is to induce those states to repeal their third-structure taxes, or to exempt Florida-registered trucks from them, by imposing the same taxes and fees solely on carriers from those states that come into Florida.

It is firmly established that a state may not impose a tax which discriminates [369]*369against interstate commerce. Armco Inc. v. Hardesty, 467 U.S. 638, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984); Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977). One of the fundamental principles of Commerce Clause jurisprudence is that no state may “impose a tax which discriminates against interstate commerce ... by providing direct commercial advantage to local business.” Northwestern States Portland Cement Co. v. State of Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 362, 3 L.Ed.2d 421 (1959). This antidiscriminatory principle follows from the basic purpose of the Clause which is to prohibit the multiplication of preferential trade areas destructive of the free commerce contemplated by the Constitution. See Boston Stock Exchange, 429 U.S. at 329, 97 S.Ct. at 606.

Because Section 207.004(5)(d) levies on certain foreign-registered trucks taxes that Florida does not assess against Florida-registered trucks, Florida’s retaliatory tax statute could not more directly violate the . Commerce Clause. On point are recent decisions of other state courts invalidating retaliatory motor carrier tax statutes virtually identical to Florida’s statute. See Private Truck Council of America, Inc. v. Secretary of State, 503 A.2d 214 (Me.1986); Private Truck Council of America, Inc. v. State, 128 N.H. 466, 517 A.2d 1150 (1986); and American Trucking Ass’n, Inc. v. Conway, 146 Vt. 574, 508 A.2d 405 (1986). The purpose of all such statutes is the same: coercive retaliation to force certain “offending states” to drop the extra tax burdens they impose on the enacting state’s trucks. The discrimination inherent in such statutes is apparent and unquestionable. The fees and taxes have the effect of giving the enacting state’s registered trucks a commercial advantage over its out-of-state competition. These statutes also discriminate between foreign trucks by giving trucks from the nonoffending states a similar advantage over competition from the offending states.

DOR argues that the purpose of Florida’s retaliatory tax statute is to discourage any state from imposing discriminatory taxes or other burdens upon out-of-state companies. Contrary to DOR’s assertions, however, such a purpose is not a legitimate one. Discrimination cannot be corrected by retaliation. See Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 40 S.Ct. 228, 64 L.Ed. 460 (1920). To prevent the destructive effects of the resulting economic warfare among the states was one of the primary goals sought to be accomplished by the Constitution. Id. To the extent that the twenty-one states whose vehicles are currently subject to Florida’s retaliatory truck tax are themselves unconstitutionally burdening interstate commerce with their third-structure taxes, the Commerce Clause itself creates the necessary reciprocity. Florida and its truckers may pursue their constitutional remedy by suit in state or federal court challenging those twenty-one states’ actions as violative of the Commerce Clause, instead of enacting retaliatory taxes. See Great Atlantic & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976). As recognized in Private Truck Council of America, Inc. v. Secretary of State, 503 A.2d at 218, a state “may not violate the Commerce Clause in an attempt through self-help to coerce another state into desisting from a Commerce Clause violation.”

Sufficiently analogous to the instant case is the Florida Supreme Court’s recent decision in Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation v. McKesson Corp., 524 So.2d 1000 (Fla.1988), in which the Court struck down a retaliatory provision in Florida’s alcoholic beverage excise tax statute.

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Related

Private Truck Council of America, Inc. v. Oklahoma Tax Commission
806 P.2d 598 (Supreme Court of Oklahoma, 1991)
American Trucking Associations, Inc. v. Conway
566 A.2d 1323 (Supreme Court of Vermont, 1989)

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531 So. 2d 367, 13 Fla. L. Weekly 2112, 1988 Fla. App. LEXIS 4041, 1988 WL 92985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-revenue-v-private-truck-council-of-america-inc-fladistctapp-1988.