OPINION
The United States of America filed its complaint against the Motor Vehicle Comptroller of the State of Mississippi seeking to declare invalid the Mississippi privilege tax1 imposed on gasoline distributors with respect to gasoline purchased since 1946 by the federal government, its agencies, and personnel when used on highways of the State of Mississippi and on government business. In addition to a declaratory judgment, the federal government seeks to restrain the [669]*669assessment and collection of such taxes and seeks a judgment in an amount equal to all such taxes paid from 1946 to date of judgment, together with interest.2 The government makes a two pronged attack. First, it contends that as a consumer of such gasoline, it bears the incidence of the tax and is therefore immune from state taxation as historically established by McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 4 L.Ed. 579. If in error in this contention, the government claims that, by virtue of Section 10014-01 of the Mississippi Code of 1942, now repealed, and similar earlier statutes, the state has discriminatorily permitted municipalities within its boundaries to obtain a refund of a portion of this tax, while denying a similar right to the federal government. United States v. Dept. of Revenue of State of Ill., 191 F.Supp. 723, and United States v. Clayton, D.C., 250 F.Supp. 827, app. dism’d 384 U.S. 156, 86 S.Ct. 1379, 16 L.Ed.2d 432.
From April 1, 1946, up to and including the most recent statute, repealed on February 23, 1966 this refund was allowed to municipalities on the tax actually paid on gasoline used solely for municipal purposes in municipally owned vehicles within municipal boundaries, or not more than ten miles beyond such boundaries, and only upon municipal compliance with all the statutory provisions for the application of a refund. The amount of the refund varied through the years, the last statutory amount being in the sum of six cents per gallon.
The defendant denies that the gasoline tax is a consumer tax affording immunity to the government as a purchaser, but says the tax is and always has been a privilege tax levied on gasoline distributors, who store, distribute and sell gasoline to be used on the roads and highways of the State of Mississippi.3
[670]*670The defendant also denies that the federal government has been discriminated against by reason of the municipal refund. Among affirmative defenses, defendant alleges plaintiff’s failure to comply with administrative procedures provided for in refund statutes; plaintiff’s failure to comply with its own statutes and regulations; that plaintiff paid said taxes voluntarily and without protest; that the three year statute of limitations on tax refunds provided in Section 9979.5 of the Mississippi Code of 1942, applies; and that plaintiff, by waiting more than twenty years to file its suit, is guilty of laches.
Since the filing of the suit there have been considerable discovery proceedings, two pre-trial hearings and orders conducted and directed by the managing judge. Prior to a hearing on the merits the parties entered into a lengthy stipulation of facts and submitted briefs, all of which, together with exhibits and oral argument, were heard by a three-judge court as required in actions attacking the constitutionality of a state statute. This Court finds that the dual claim of the federal government must fail.
By stipulation of the parties, excise taxes on gasoline delivered to agencies of the United States, agencies of the state and the general public have been assessed on and paid by distributors to defendant since March 1944 (actually earlier). The tax is calculated on the basis of the number of gallons received by the distributor, less 2% allowance for spillage and evaporation, times the amount of the tax. If a distributor is delinquent in reporting the tax, regardless of how or to whom said gasoline may be utlimately distributed, his bonding company is looked to for payment. Funds realized from the tax have at all times been and are now used exclusively for the construction and maintenance of public roads.
In the light of this history, the Attorney General of the State of Mississippi, and the Comptroller of the United States, in charge of federal fiscal affairs, have consistently found and advised in their official opinions 4 that the legal incidence of the Mississippi gasoline tax is on the vendor rather than on the vendee. The latter has found this true with regard to the gasoline taxing statutes of numerous states, including Mississippi, where the tax is expressly assessed against and collected from bonded distributors.5 Regulation 107 issued [671]*671by the Commissioner of Income Tax of the State of Mississippi as applied to income tax statutes provides that sales, tobacco, amusement, beer and gasoline taxes paid directly to the State of Mississippi are deductible either as taxes or as a part of the cost of merchandise; however, the regulation, as continued, further provides, “When paid by the consumer to the merchant, they constitute a part of the cost of the commodity sold, and are not deductible.” Thus, the income tax regulation is consistent with the gasoline statutes in allowing a deduction to the distributor who pays the tax directly to the taxing authority and in not allowing the deduction to the consumer. It is to the tax structure as a whole that the Court looks. United States v. Clayton, D.C., 250 F.Supp. 827, app. dismissed, United States v. Clayton, 384 U.S. 156, 86 S.Ct. 1379. The fact that the federal government has contrived formulas for computing deductions of both gasoline and sales taxes to consumers on their federal income tax returns is immaterial. More in point, although it is more applicable to the discrimination feature, is the fact that the Mississippi sales tax, borne by the vendee, is exempted to the federal government when it is the purchaser.
The plaintiff contends that the thrust of its action is not circumscribed by the opinions of the attorney general of the state or of the comptroller general of the United States, or the language of the statute, or even by state court interpretations, but cite from United States v. Department of Revenue, 191 F.Supp. 723, the following: “The particular name which a state legislature may give to a money payment commanded by a statute is not controlling when its constitutionality is in question.” We do not quarrel with the contention that a statute’s practical operation and effect determines where the legal incidence of the tax falls. We simply agree that the tax burden in the Mississippi statute falls plainly and squarely on the distributor to whom the state looks for the payment of the tax, albeit the amount of the tax may ultimately be borne by the vendee, in this case the federal government. In addition to the above authorities, the Supreme Court of the United States has likewise spoken. In United States v. Boyd, 378 U.S. 39, 84 S.Ct. 1518, 12 L.Ed.2d 713, the Court said: “The Constitution immunizes the United States and its property from taxation by the states, McCulloch v. Maryland, 4 Wheat 316, 4 L.Ed.
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OPINION
The United States of America filed its complaint against the Motor Vehicle Comptroller of the State of Mississippi seeking to declare invalid the Mississippi privilege tax1 imposed on gasoline distributors with respect to gasoline purchased since 1946 by the federal government, its agencies, and personnel when used on highways of the State of Mississippi and on government business. In addition to a declaratory judgment, the federal government seeks to restrain the [669]*669assessment and collection of such taxes and seeks a judgment in an amount equal to all such taxes paid from 1946 to date of judgment, together with interest.2 The government makes a two pronged attack. First, it contends that as a consumer of such gasoline, it bears the incidence of the tax and is therefore immune from state taxation as historically established by McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 4 L.Ed. 579. If in error in this contention, the government claims that, by virtue of Section 10014-01 of the Mississippi Code of 1942, now repealed, and similar earlier statutes, the state has discriminatorily permitted municipalities within its boundaries to obtain a refund of a portion of this tax, while denying a similar right to the federal government. United States v. Dept. of Revenue of State of Ill., 191 F.Supp. 723, and United States v. Clayton, D.C., 250 F.Supp. 827, app. dism’d 384 U.S. 156, 86 S.Ct. 1379, 16 L.Ed.2d 432.
From April 1, 1946, up to and including the most recent statute, repealed on February 23, 1966 this refund was allowed to municipalities on the tax actually paid on gasoline used solely for municipal purposes in municipally owned vehicles within municipal boundaries, or not more than ten miles beyond such boundaries, and only upon municipal compliance with all the statutory provisions for the application of a refund. The amount of the refund varied through the years, the last statutory amount being in the sum of six cents per gallon.
The defendant denies that the gasoline tax is a consumer tax affording immunity to the government as a purchaser, but says the tax is and always has been a privilege tax levied on gasoline distributors, who store, distribute and sell gasoline to be used on the roads and highways of the State of Mississippi.3
[670]*670The defendant also denies that the federal government has been discriminated against by reason of the municipal refund. Among affirmative defenses, defendant alleges plaintiff’s failure to comply with administrative procedures provided for in refund statutes; plaintiff’s failure to comply with its own statutes and regulations; that plaintiff paid said taxes voluntarily and without protest; that the three year statute of limitations on tax refunds provided in Section 9979.5 of the Mississippi Code of 1942, applies; and that plaintiff, by waiting more than twenty years to file its suit, is guilty of laches.
Since the filing of the suit there have been considerable discovery proceedings, two pre-trial hearings and orders conducted and directed by the managing judge. Prior to a hearing on the merits the parties entered into a lengthy stipulation of facts and submitted briefs, all of which, together with exhibits and oral argument, were heard by a three-judge court as required in actions attacking the constitutionality of a state statute. This Court finds that the dual claim of the federal government must fail.
By stipulation of the parties, excise taxes on gasoline delivered to agencies of the United States, agencies of the state and the general public have been assessed on and paid by distributors to defendant since March 1944 (actually earlier). The tax is calculated on the basis of the number of gallons received by the distributor, less 2% allowance for spillage and evaporation, times the amount of the tax. If a distributor is delinquent in reporting the tax, regardless of how or to whom said gasoline may be utlimately distributed, his bonding company is looked to for payment. Funds realized from the tax have at all times been and are now used exclusively for the construction and maintenance of public roads.
In the light of this history, the Attorney General of the State of Mississippi, and the Comptroller of the United States, in charge of federal fiscal affairs, have consistently found and advised in their official opinions 4 that the legal incidence of the Mississippi gasoline tax is on the vendor rather than on the vendee. The latter has found this true with regard to the gasoline taxing statutes of numerous states, including Mississippi, where the tax is expressly assessed against and collected from bonded distributors.5 Regulation 107 issued [671]*671by the Commissioner of Income Tax of the State of Mississippi as applied to income tax statutes provides that sales, tobacco, amusement, beer and gasoline taxes paid directly to the State of Mississippi are deductible either as taxes or as a part of the cost of merchandise; however, the regulation, as continued, further provides, “When paid by the consumer to the merchant, they constitute a part of the cost of the commodity sold, and are not deductible.” Thus, the income tax regulation is consistent with the gasoline statutes in allowing a deduction to the distributor who pays the tax directly to the taxing authority and in not allowing the deduction to the consumer. It is to the tax structure as a whole that the Court looks. United States v. Clayton, D.C., 250 F.Supp. 827, app. dismissed, United States v. Clayton, 384 U.S. 156, 86 S.Ct. 1379. The fact that the federal government has contrived formulas for computing deductions of both gasoline and sales taxes to consumers on their federal income tax returns is immaterial. More in point, although it is more applicable to the discrimination feature, is the fact that the Mississippi sales tax, borne by the vendee, is exempted to the federal government when it is the purchaser.
The plaintiff contends that the thrust of its action is not circumscribed by the opinions of the attorney general of the state or of the comptroller general of the United States, or the language of the statute, or even by state court interpretations, but cite from United States v. Department of Revenue, 191 F.Supp. 723, the following: “The particular name which a state legislature may give to a money payment commanded by a statute is not controlling when its constitutionality is in question.” We do not quarrel with the contention that a statute’s practical operation and effect determines where the legal incidence of the tax falls. We simply agree that the tax burden in the Mississippi statute falls plainly and squarely on the distributor to whom the state looks for the payment of the tax, albeit the amount of the tax may ultimately be borne by the vendee, in this case the federal government. In addition to the above authorities, the Supreme Court of the United States has likewise spoken. In United States v. Boyd, 378 U.S. 39, 84 S.Ct. 1518, 12 L.Ed.2d 713, the Court said: “The Constitution immunizes the United States and its property from taxation by the states, McCulloch v. Maryland, 4 Wheat 316, 4 L.Ed. 579, but it does not forbid a tax whose legal incidence is upon a contractor doing business with the United States, even though the economic burden of the tax, by contract or otherwise, in ultimately borne by the United States.” Gasoline stored in private storage facilities in Tennessee without title passing to any entity other than the United States, and to be used in aircraft only, constituted the controlling facts on which the Court in Esso Standard Oil v. Evans and United States v. Evans, 345 U.S. 495, 73 S.Ct. 800, 802, 97 L.Ed. 1174 said: “This tax was imposed because Esso stored gasoline. * * * Federal ownership of the fuel will not immunize such a private contractor from the tax on the storage.” Although the gasoline was wholly owned by the United States and not used on any highway, the liability for the tax accrued by virtue of the temporary storage of the gasoline [672]*672in the hands of a distributor. Hence we find that Mississippi’s gasoline tax is not such a tax to afford immunity to the plaintiff, except when it has received specific exemptions such as for gasoline used by the armed forces of the United States. As stipulated, this exemption has been in effect throughout the period of this claim and is now in effect by Section 10013-39 of the Mississippi statutes.
Aside from the exemption to the armed forces for the full amount of the tax at the rate of 7 cents per gallon, other stipulated facts bear on the plaintiff’s charge of discrimination. The gas tax statutes do not and never have contained any provision authorizing refunds of taxes, paid by distributors, to the United States, the State of Mississippi or any county thereof on gasoline used in propelling motor vehicles on the highways of the State, even if such gasoline was used for governmental purposes.
However, the refund provisions with respect to non-highway use have been liberally allowed to all governmental agencies, state and federal. The statutes made provision for refund of gasoline taxes to municipalities during the period April 1, 1946, to February 23, 1966, but made no provision for a tax exemption to municipalities during that time, nor do they now. Simply put, the exemption to the armed forces is for the full 7 cents per gallon tax; the refund to the municipalities was 1 cent per gallon less than the tax actually paid, or as per last enactment, a refund of 6 cents per gallon. The city was taxed as a distributor, and a refund given upon proper application therefor and on only gas used within the municipality (later within ten miles of the boundaries), and for municipal purposes.
Defendant maintains that plaintiff and its agencies may similarly claim a refund for gasoline used in its parks, enclaves, and other places not including highways of the state and by filing proper application therefor. This to the Court is comparable to the refund allowed municipalities and not discriminatory.
It was further stipulated that plaintiff has never filed a claim on gasoline used in vehicles and places other than state highways which has not been processed and paid, and until the institution of this suit there were no pending unpaid claims.
Accordingly, on the finding that the tax is exempted to the military, the fact that the refund accorded municipalities, which has now been repealed, was equally available to the government for gasoline used within its own enclaves, and the fact that, for general highway use, defendant offers no exemptions or refunds to its own agencies, as well as none to the government (except for military use), the Court concludes that the tax or refund statutes were not discriminatory as to the federal government. See Phillips Chemical Co. v. Dumas School District, 361 U.S. 376, 80 S.Ct. 474, 4 L.Ed.2d 384; United States v. Clayton, D.C., 250 F.Supp. 827, app. dismissed, 384 U.S. 156, 86 S.Ct. 1379, 16 L.Ed.2d 432.
In sum, the Court finds as a fact that the tax in suit at all times was levied and assessed against and collected by the State of Mississippi from a gasoline distributor, duly qualified under its laws, and never collected any such tax in suit (directly or indirectly) from the United States or any of its agencies; and that the defendant never discriminated against the plaintiff in any manner in its administration of said privilege or excise tax law, according to the undisputed evidence and testimony in this case. The Court concludes as a matter of law that the plaintiff has failed to show by a preponderance of the evidence in this case that it has paid any privilege tax to the State of Mississippi on gasoline as a distributor during the period in suit; and the evidence does not show that the plaintiff ever paid the State of Mississippi anything as a tax on gasoline at any time in suit in violation of its sovereign immunity doctrine; and the evidence shows as a matter of law that there has been no discrimination [673]*673against the United States in the administration of this privilege tax statute against distributors of gasoline in Mississippi; and that the complaint of the plaintiff in its entirety is without merit and should be dismissed without the assessment of any costs.
An order accordingly may be presented to any judge of this Court.