*1 summary judgment to grant of trial court’s and should Higgins proper
Defendant affirmed. 73,646, HAVING
IN NO. CERTIORARI PREVIOUSLY, THE
BEEN GRANTED THE COURT OF APPEALS
OPINION OF THE TRIAL COURT’S AND
IS VACATED IS AFFIRMED. OF DISMISSAL
ORDER 76,300, AF- THE JUDGMENT IS
IN NO.
FIRMED. LAVENDER, V.C.J.,
HODGES, WILSON, KAUGER,
SIMMS, ALMA, WATT, JJ., concur.
SUMMERS COMMISSION, TAX
OKLAHOMA
Appellee, MUSKOGEE,
CITY VENDING OF
INC., Appellant.
No. 65602.
Supreme Court of Oklahoma.
July *2 J. Blankenship, Lawrence Robert C. Jen-
kins, Hudson, Johnston, Stanley David Of- Counsel, fice of General Oklahoma Tax Com’n, City, appellee. for Staton, Muskogee, Jon Tom appel- for lant.
PER CURIAM:
Appellant, City Vending of Musko
gee,
(City Vending),
Inc.
anwas Oklahoma
based wholesaler of
licensed
appellee, the Oklahoma Tax Commission
(OTC).1
required
pur
Wholesalers are
chase and affix
cigarettes2
tax
exceptions.3
31, 1985,
May
with certain
On
auditing City
after
Vending, OTC mailed a
proposed tax assessment to it for distribu
unstamped
tion and sale of
cigarettes.
sought
OTC also
to cancel and/or revoke
City Vending’s wholesale license for its
stamps.4 City
failure to affix
Vending protested the assessment and de
against
fended
revocation of its license on
grounds.
argued
two
the sales at issue
were made to Indian Tribes and the trans
actions
exempt by
were therefore
virtue of
the Indian Commerce Clause of the United
CONST,
States Constitution. U.S.
art.
City Vending
cl. 3.5
also asserted OTC
§
discriminatorily applied
against
wholesalers,
laws
in-state
while not
seeking any
against
assessment
out-of-
wholesalers who also sold
Presently, only
to Indian Tribes.
the first
defense is involved.6
to 4. The relevant statute
Cigarette
1.
setting
procedure
wholesalers were and are
out the
O.S.1981, 304,
be licensed. 68
now 68 O.S.
granted by
§
to cancel a license
OTCfor violation
Although
§ 304.
certain
O.S.1981,
statutes involved
of the tax laws was 68
212.
§
changed
filing
in this case have been
since the
appeal
proceedings
of the instant
and the
occur-
CONST,
provides:
5. U.S.
art.
§
cl. 3
Con-
OTC,
ring herein before the trial court and
gress
power
regulate
shall have
Commerce
“[t]o
statutory provisions covering the instant matter
Nations,
foreign
among
the several
are those found in the 1981 Oklahoma Statutes.
States, and with the Indian tribes".
Accordingly,
opinion
references in this
will be
statutes,
pertinent
to the 1981 versions of
unless
6. The three issues and errors set forth in
specified.
otherwise
Vending's petition in error and amendment
O.S.1991,
petition
§
in error were as follows:
3. See
“1.
the wholesale of
to an Indi-
Is
O.S.1991,
e.g.
(exemption
§
pursuant
an Tribe
from state tax
to the
cigarettes sold in interstate commerce after fil-
Commerce Clause?
O.S.1991,
bond)
ing
proper
and 68
2. Should the license have been revoked
(exemption
hospi-
sold to veteran’s
City Vending
since
has filed the case on the
operated domiciliary
tals and state
homes for
question,
paying
constitutional
after
the contest-
veterans for sale to ex-service men or women
taxes, pursuant
States).
ed
to
9. A void be process guarantees (Okla.1989). procedural due licensees Hough Hough, However, United States the Fourteenth Amendment judgment to be void it must argued process licensees Constitution. The judgment appear face of roll meaningful opportunity present provided no rendering judgment record the court lacked revocations. constitutional defenses license jurisdiction parties, over the matter III, 3.5§ Licensees claimed because article jurisdictional power partic- render or the Furthermore, prohibited admin of the California Constitution judgment, evi- ular id. extrinsic declaring statutes uncon jurisdiction permit- istrative bodies from dence of the lack of refusing of statutes stitutional or enforcement Id. ted. uncon on the of claims such statutes are basis de part that review of administrative Jones & Okla stitutional and 10. We held in Dow Co. v. Commission, liquor were limited cisions to revoke a license Tax homa remedy nonexempt end to collect taxes on Normally inquiry our would However, Vending sales, here. because i.e. sales to members. nontribal wholly it the sales made were claims all accordingly following, stated the un- “[a]nd virtue of exempt from taxation decision, today’s may States of course der presumably Clause and Indian Commerce the sales tax from collect whole- ousted authorities that such fact State salers, by seizing unstamped ciga- either sales, to tax we all off the rettes reservation ... or assess- the Commerce compelled feel answer supplied unstamped ing wholesalers who question. Clause stores_” (cita- to the to admit Although City Vending appears — omitted) Id., -, tions U.S. at to this Court its submissions City Vending Accordingly, at 912. S.Ct. Indian in this case to Indians and/or wrong that Indian Commerce Clause by the resale at the retail level Tribes for exempts all sales a wholesaler to an shops tribally related smoke tribes or Indian Tribe. excise only exempt from the would involved to members of the tax made however, may, argue One be dealings are nonetheless tribe it asserts authority only the State to tax cause under the completely final retail sales nontribal members and authorities Commerce Clause and State *5 case made no distinction in this be OTC remedy directly against a seek a must ultimately sales at the retail level tween retailer. do shop or the smoke We Tribe made made to tribal members and those to agree. authority members nontribal it had no Tax Commission Citi any license. revoke the We do not believe Tribe Potawatomi zen Band in argument City Vending such assists — -, Oklahoma, 111 S.Ct. U.S. present case. No has present record been States 112 L.Ed.2d United us which to whom the ed to would show held that retail sales Supreme Court by the retail were made in ultimate sales nontribal cigarettes by tribal sellers to shops City Vending Tribes or smoke volved subject tax. were to Oklahoma members cigarettes. only record This wholesaled — at-, at 911. How U.S. S.Ct. City Vending to Indians and/or sold shows ever, .opinion Supreme the same in at level Indian Tribes the wholesale for a Tribe not be sued Court held could fact this resale within Oklahoma. Once Tribes authorities because Indian State tax established, exemption which without some sovereign immunity from nonconsen- retain — cigarette a violation of our would be Id., at by the State. U.S. sual suit laws, City Vending’s it was burden show Supreme -, at The 111 S.Ct. 909-910. which would valid existed some ruling this latter barred Court realized exempt. The instant its sales tax pursuing the most efficient make State from courts, petition in error discretionary appellate error or its amendment review in before process appeal challenge on due they process in this denied due of law. filed were covering statutory process disagreed. grounds to the the California Circuit It noted Ninth authority license. It consti of a wholesaler’s consider the revocation courts did have however, did, purported lack of during allude due that administra and tutional claims petition as another hearings given opportu process in its for licensees certiorari tive any Like OTC order. for voidness of the nity raised, present evidence to all defenses basis relevant attempted be raised including raised or their defenses. other issue City constitutional (or Vending post-petition in error in found The Ninth Circuit further Id. at 1234. submissions, thereto) contrary in whether amendment to licensees’ contention review that basis, process any other such appellate on due was discretion based California courts not be appellate been waived and will issues have con ary, of the revocations in the review According errors not raised right. us because issues or sidered as of Id. at 1235. courts was be considered on process petition in error will not in the ly, Circuit held the received the Ninth a brief or appeal if later in later procedur even contained satisfied minimal the licensees party. See appealing Martin Amendment submission requirements of Fourteenth al District, supra Vending Independent City School v. Harrah Clause. Id. at 1235. Due Process petition note 6 as an issue error in its did not raise exemption.13 any show ORDER record does not Furthermore, only to tribal sales rehearing Appellee, petition from the reach exempt would be members granted Tax Commission is the Oklahoma the face of the and of Oklahoma’s laws opinion promulgated and Court’s provided been does record we have reported April 1991 and at 62 O.B.J. explicitly sales show retail replaced is withdrawn can- members which would be we date. opinion filed this jurisdiction to re- not conclude OTC lacked BY ORDER. DONE Vending's City license nor voke enjoining in permanently trial court erred Vending continuing to wholesale ALA, Justice, concurring in OP Chief after revoked.14 license was judgment.
Accordingly, opinion of the Court today The court affirms the trial court’s court Appeals is Vacated and the trial enjoins the judgment permanently which Affirmed. wholesaler, City Vending, selling cig- within the State without a license.
arettes pro- I do not accede the court’s LAVENDER, While HODGES, V.C.J., and as the court nouncement, I concur SIMMS, WATT, JJ., HARGRAVE and insofar declares that the Oklahoma Tax Commis- concur. order, sion’s [Commission] as- which WILSON, J., specially. concurs against excise tax sessed OPALA, C.J., judgment. concurs is not license, wholesaler revoked facially void want matter JJ., SUMMERS, dissent. KAUGER quote City Vending argued indicating, at least one sub- view the above at a mini- mum, Vending by City to this Court there was no evidence that the mission *6 merely it sold the record before OTC that the Tribes resold in and were not were cigarettes by to resold at the retail the a Tribe or tribal members. The consumed It, thus, however, appears argue explicitly say to without quote, level. does not to whom exempt they evidence all of sales would be that were the resold or may Tribes or have City Vending because the its members level. cannot resold at the retail again merely all the advantage consumed apparent of take uncertain- now argu- Such the ment(s) at the wholesale level. proof ty. The burden of to show an simply present are viable on the City Vending. laws was Bert from the tax on Findings, Co., record. The etc. of the administrative Machinery Inc. v. Oklahoma Smith Road adopted judge, the Commission, as OTCin its Order of (Okla.1977); law Tax following contains statement of Consultants, Commission the Enterprise Management abo See Commbsion, fact: P.2d v. Oklahoma Tax Inc. 359, (Okla.1988) (protesting taxpayer must City protest Vend- The facts at issue the of proving of was sustain burden erroneous). tax assessment Muskogee, being ing dispute, Inc. not in are Furthermore, may not be error Vending] [City cigarettes to Indi- that has sold record, presumed from a silent but must be resale within the ans tribes for and/Indian Adair, affirmatively su- demonstrated. Eckel v. failing to affix State of Oklahoma and therein City Vending pra note 7 at 924. has not affirm- cigarette as thereto by excise tax atively any on of the demonstrated this record of the the laws State of Oklahoma. etc., it sold resell at the Findings, pg. Original pg. Tribes or Indians to did not Record any to provided transcript or that resales were made or other retail level We have been no proceedings before members. the record of administrative appeal pursuant to 225 such an OTC. In an Vending City failed to show on 14. In that present- record been administrative could have exempt any we of its sales were tax OTC, this record prepared by as as certified ed to us here whether OTC’s Commission, need not determine it had Secretary upon request of the the be void and O.S.1981, 225(b). of revocation would then order Vending. Appar- instead it to collateral attack or whether City Vending ently, OTC made neither nor merely type voida- be considered some could provide the record to administrative effort subject only appeal direct Findings, order attack on Only ble in this trial court case. assess- exceeded its judge because OTC and the of the administrative law etc. though revoking ing some, even a tax and the license attached to the of the Commission were Order to be tax injunctive not all sales were shown filed in the but petition of OTC for relief County. Clearly, exempt. Muskogee we District Court properly burdened (a) jurisdiction. possible writing separately inclu- I am give prominence part component. to that of the levy sion of an unauthorized opinion discusses the conse- court’s which agency per- But even if the order could be quences of our Dow Jones’1 teaching that excess adjudication ceived an powerless on con- unquestionable agency pass an power Commission’s statute, (b) empha- stitutionality of a tax,2 levy a excise assessment appeal directly size that an invalid. facially from final in contest here is not preserve the necessary to agency order is impervious could hence stand to collateral aggrieved party’s chal- constitutional taxpayer attack launched process lenge in the unresolved left injunctive district court action relief. adjudication. administrative I recede from the notion Com- I totally scrutiny here is mission order under apparent infirmity from free offacial FAILURE AN UNRESOLVED TO RAISE view an exces- agency proceedings. my CONSTITUTIONAL CHALLENGE sive exercise in- taxing power may BY DIRECTLY APPEAL BROUGHT inspection a casual ferred even AN ADMINISTRA- FROM ADVERSE proceedings. This conclusion flows these TIVE DECISION MAKES THE from the Commission’s undifferentiated AGENCY ORDER IMPERVIOUS TO taxing (at procedural approach A LATER COLLATERAL ATTACK all level) wholesale transaction ON GROUNDS CONSTITUTIONAL sales to tribes. The critical assess- Dow teaches constitutional Jones3 may ment in contest here well have includ- adjudicative challenges lie com- outside portion federally ed some attributable agencies. petence of administrative Under the face of sales. While intratribal pre-Dow Jones practice, clearly un- proceedings the Commission’s far simon-pure, infirmity agency’s does not make failure to derstood that agency facially challenge, ag- the critical order void. constitutional consider a maximum, appeal grieved party had to lest deci- question At a the assessment or im- Dow Jones does not excessive final.4 might partly sion become be viewed as Com'n, proceeds disposition & rel. thereof. 1. Dow Jones Co. v. State ex Tax Okl., (1990). *7 pertinent terms The of are: enabling 308(a), purpose "For the Oklahoma and O.S.1991 §§ See 68 2. of infra. liability Tax Commission to determine the pertinent part: provides Section ..., it shall have the of a ... wholesale dealer sale, use, upon hereby “There is levied right inspect any premises where possession, consumption or of ... stored, * * * ... and to examine are ... [or] a within the State of Oklahoma tax.... required herein be all the records by stamps which Such tax shall be evidenced added.) kept_” (Emphasis by purchased be and from shall furnished impression or an ... Tax Commission Supra 1. 3. note metering a when use of device authorized the by Tax ... and said Commission Health, Etc., Conoco, Dept. Inc. State securely impression one be affixed to shall Okl., party aggrieved package in are of each which end timely appeal a final perfect a failed to or from which consumed. contained It then order. resorted administrative provi- impact the tax levied The challenge validity of for a district court hereby on this is declared to be sions of article invok the rule which the order rested on vendee, user, consumer, possessor of judgment jurisdiction ing declaratory under 75 state, and, cigarettes in when said tax "the We stated that time there O.S.1981 payment by any person, paid shall other appeal an adverse which to limits within payment and an advance considered as be jurisdictional and that if in nature decision are price added to the of the thereafter be shall untimely brought appeal the court has no an from the and recovered ultimate ”** * applies to mine.) power the case. This rule to decide (Emphasis or user. consumer judicial actions 308(a) of administrative review are: pertinent terms of " * * * judgments court and as it does to responsible same extent The Commission shall at 128. custody stamps, and decrees.” Id. sale of the for the stamp. apparent It is prac- rule disturb that time-honored proceedings the face of the Commission tice. distinguish be- procedure that its did not to re- competence An agency's want taxing categories two distinct tween —the not en- attack does solve a constitutional sales to tribal and nontribal ultimate decision to party aggrieved its able a pro- From this undifferentiated members. challenge past timely appeal. delay the infer an infirmi- approach cedural one could may beyond agency or- One not wait ty apparent upon proceed- the face of the a claim of constitu- finality to assert der’s may indeed ings. The have Commission infirmity. tional taxing power by including in exceeded its Vending appeal from the City did not the contested assessment transactions rather, order; pressed Commission’s qualify federally intratribal infirmity as a defense order’s constitutional But if sales were in sales. even intratribal injunction. court Since against the district taxed, improperly fact their inclusion would facially the assessment in contest is not invalidity. a facial not create The Com- Vending’s timely ap failure void5 mission’s exercise such unauthorized agency decision final and peal makes that is, most, an act in excess but not power im interposed district court defense an jurisdiction. absence in the permissible collateral attack. A. II The Distinction Between Excess UNDIFFERENTI- THE COMMISSION’S and Absence of Jurisdiction APPROACH ATED PROCEDURAL TAXING CIGARETTES FOR TO the distinction between law observes THE INDIAN TRIBES AT SALE TO over a excess and absence LEV- WHOLESALE TRANSACTION In the cir- given subject matter.6 latter RATH- EL AT BEST AN EXCESS IS cumstance, judicial power to act at all is THAN JURISDIC- ER ABSENCE OF example, pro- if simply wanting.7 For TION authority is limited to bate court whose findings estates should conduct judge’s law wills and decedents’ The administrative trial, jurisdiction to decide against a criminal show the contested assessment is, doubt, ciga- any issue in the case without a City Vending to be for the sale of hand, entirely On the other when transaction level to absent. rettes at the wholesale does authority “resale” to deal with “Indians and/or Indian tribes” for exist, pow- “consumption the State” and for the manner extent within excessive, exercise, patently cigarette excise tax er's even “failing to affix thereto stand, a direct at- Vending’s re- will absent of course stamps.” City license was general distributing cigarettes tack.8 If a court invested with without voked *8 352, 651; Williams, supra invalidity" concept see 20 L.Ed. at State v. For the of "facial 5. infra 11(A). note 7 at 665. Part distinction between “excess” and "absence” 335, Fisher, (13 Wall.) Bradley 80 U.S. 351- 6. v. concept judicial jurisdiction is a common-law of 646, 352, (1872); Spark Stump 20 L.Ed. 651 v. cognizance. applicable agency equally to If the 1099, 1105, 349, 356, man, S.Ct. 55 435 U.S. 98 Department Safety press were to be- of Public (1978). L.Ed.2d 331 itself, adjudicative agency, an criminal fore as influence, charges driving under the Williams, 541, 663, would, 209 Wis. 245 N.W. 7. State v. Department’s authority proceed to with- (1932). 665 doubt, entirely wanting. be found On the out a hand, authority revoke a driver’s other adjudicative statutorily present. The manner and extent of an au- license is 8. The manner and power’s exercise would deter- thority's which are extent of the latter exercise are but two factors excessively applied. Sim- appropriate whether it was just for a tribunal’s determina- mine Commission, here, proceeding. ilarly which is vested any Brad- the Tax other issue in the tion as correct, 6, Wall.) Fisher, (13 authority adjust general or supra at ley note 80 U.S. with v.
105
power
pronounce
particular
criminal
find
al
jurisdiction over
cases should
deci-
contrast,
that was
public
act or omission to be a
offense
sion
an
some
rendered.12
excessive exercise of
does not
clearly
not,
cognizance
is
or should
when
law
facially
of make
decision
void and vul-
years
sentence
defendant
eleven
nerable
collateral attack.13 An
agency
imprisonment when
maximum confine-
facially
valid
ten,
order
not
void “is
prescribed by
only
statute
ment
aside,
until set
may
parties
preclud-
be
in excess
decision would
be
but
waiver,
setting
ed from
it aside
...
absence o/the
court’s
jurisdiction.9
14
estoppel, or the passage of time.”
Juris-
examples
distinguish
serve to
These
not wanting
exceeded
merely
diction is
but
absence of
from its excess.
jurisdiction
misinterpreted
when a statute is
adjudi-
the conse-
concern in this case is
Our
authority
cative
is exercised
erroneously.15
quences flowing from
those
terms. When
If extrinsic evidence is needed to
show
jurisdiction
absence
complete
appears
absence,
the decision is jurisdiction’s
(or
judgment
on the face of the
roll
facially
Firmly
ju-
rooted in our
invalid.16
inspection
its administrative
counter-
an
applied
these distinctions are
risprudence,17
part
“agency
proceedings”),10
—the
agency
fall
decisions that
under the ad-
course,
void and sub-
is,
ruling
court’s
judicative
rubric.18
ject
on direct or collateral at-
vacation
deemed
The tribunal’s decision is
tack.11
B.
only
the record
void
when
face of
Cognizance
The Tax Commission Has
reveals
at least one of the three ele-
Of Federal-Law Issues
absent,
agency jurisdiction
ments
was
i.e., jurisdiction
parties,
jurisdic-
constitutionally
over
State courts have the
in
authority
jurisdiction-
tion over the
matter or
over
claim
vested
federal-law
audit,
Co.,
1392;
acting
Exploration
supra
an
was
within its
note
abate
erroneous
GHK
10 at
Ward,
cognizance, although
might
supra
v.
note 10 at
assessment
Mullins
60.
221(b)
68
condemned as excessive.
O.S.1991
(e).
665;
Williams, supra
People
at
13. State v.
note 7
574,
Ruiz,
886,
Cal.App.3d
Cal.Rptr.
217
265
v.
Fisher,
6,
(13
supra
Bradley
9. See
v.
note
80 U.S.
Dist.1990).
(Cal.App. 3
892
Wall.)
351,
at
or issue not
procedural avenues avail.
Indi
Congress.19
alternative
jurisdiction by an act of
Tribal
employed in the
vidual tribal members
Indi
immunity
claims or defenses
sovereign
may not claim
immu
smokeshops
tribal
on federal
law must
sought
to be based
are hence
to collect
States
nity.
sovereignty
from
dual
yield to this nation’s
free
unstamped ciga
taxes on
the wholesalers
Okla
system.
dual court
scheme and its
stores}22
supplied to tribal
rettes
Okla
v.
Graham;20
homa Tax Commission
homa’s
decisional
law foreshadowed
own
v. Citizen
Oklahoma Tax Commission
Band.
Citizen
held a
immu
had
Tribe’s
Tribe Oklah
Band Potawatomi Indian
nity from taxes not
to extend to tribal
In Graham
that
the Court held
oma.21
affecting
or transactions
nontri-
activities
counterclaim,
sovereign
immunity
tribal
bal members.23
suit
to enforce a
pressed in a state-court
against an Indian tribe for
tax assessment
government
While the federal
shares its
receipts,
bingo
is not
(for
sales and
immunity24 with the Indian tribes
tax
federal court.
It stands
removable to a
government
benefit
holds reser-
whose
Band
in a state court. Citizen
cognizable
trust),25
immunity
lands in
does
vation
immunity deprives nei
ipso
private
teaches
extend to
entities
facto
institutions ther state administrative
government.26
doing
with the
Un-
business
goods
sales of
power
repudiated “intergovernmental
their
to tax tribal
der the now
state
to nontribal members nor
doctrine”,27
(cigarettes)
immunity
government
tax
state
courts
authority
enforce the tax
of their
tax income that an individual
could
There,
“equitable
directly
any
remedies”.
contract with the
through
derived
Today,
government.
the Tribe’s sover
federal
unless Con-
Court notes
while
pursu
gress
expressly
impliedly
acted to
eign’immunity bars the state from
taxation,
“a
can im-
remedy
preempt
col
State
ing its most effective direct
Mexico,
Corp.
supra
Donnelly,
Freight System,
v.
25. Cotton Petroleum
v. New
Inc.
494
19. Yellow
1568,
1707;
820, 821-23,
1566,
24,
175-77,
108
U.S.
109 S.Ct. at
U.S.
110 S.Ct.
note
490
Levitt,
Indians,
(1990);
v.
493 U.S.
U.S.
L.Ed.2d 834
455, 458-49,
v.
Tribe
471
Montana
Tafflin
Blackfeet
795,
792,
2399, 2402,
759, 764,
107
private
possession
into
for
or
nondiscriminatory tax on
come
their
use
pose a
the
States or an
state.
parties
consumption
with whom
United
the
68 O.S.1991
business,
302,30305(a).31
though
does
even
The tax
Indian tribe
levied “shall be
§§
may
on
paid
only
burden
the tax
the Tax
once on
[to
Commission]
fall
financial
consumed_”
”.28 Unless fed-
any cigarettes
States or tribe
the United
sold ... or
levy,
legislation
preempt
eral
Payment
68 O.S.1991 302.32
of the ex
§
would make
the rise of
new doctrine
stamps
cise
is evidenced
which must
production
land
oil
from Indian
lessee’s
cigarette
package
be affixed to
before
amenable
state taxation.29
for
68
further distribution.
O.S.
302,33 305(a).34
The licensed
§§
City Vending pressed the
Had
Commis-
wholesaler’s withdrawal
quest
sion
reduce the assess-
storage
sale or distribution
inter-
exempt sales and
ment to exclude
marks the taxable events
35 O.S.1991
levy
posed
reduction
the —sales
—for
305(a).36
A
be paid
tax must
§
to the ultimate
intratribal
transactions
in advance on all
distributed to
consumer,
only
the Commission
would
Indian tribes. Because the taxable event
fed-
cognizance to entertain that
have had
the cigarettes
occurs
are either sold
defense,
have
eral-law
it would
been
before
distributed,
or
state’s
collection
duty to so do.
may easily
process
result
an excessive
C.
wholesaler,
payment. The nontribal
when
statutorily required
stamps,
Be
affix
Agency-Crafted
An
Rule Should
to ascertain in advance whether
unable
Obtaining
Adopted
Tracking And
For
the ultimate consumer will be a tax-ex
Exempt
Ciga-
For
Intratribal
Credit
empt
pur
member or a nontribal
rette Sales
chaser.
Payment
The Tax
regime
statutory taxing
then
Under the
The Tax Burden
wholesalers,
(and now) in force licensed
statutory
contemplates
scheme
jobbers
required
and warehousemen are
tax incidence
be on
consumer.
pay cigarette
excise tax on all
Mexico,
doing
Corp.
supra
"Every
business within
28.
v. New
wholesaler ...
Cotton Petroleum
24,
175,
required
to secure a license ...
O.S.1991 302.38 The § tially paid by when the wholesaler Exemption The Tax bought are from the Commission —is an statute, By only two then-effective payment”. The wholesaler adds “advance categories expressly exempted are sales price cigarettes sup- the tax to the hospitals tax—those to veteran impact plied to the retailer. The of this state-operated veteran homes and to the “pass-through” system ultimately falls no United States.41 simply provi- There is upon stamped cigarettes. the consumer of sion for wholesale-level for sales making cigarettes retail sales made to Indian tribes. Transactions with retailer is to “show the amount of per se either exempt the tribes are not paid [pass-through] [that been] law; only cigarettes state or federal by appropriate stamps each evidenced on ultimately which reach the tribal con- package cigarettes collect sold” sumer are tax. bur- the tax “from the user or consumer”. 68 proving den of sales and secur- intratribal short, by shifting 302.39 In O.S.1991 § ing for them a tax credit refund rests levy incidence of the onto the ultimate con- (the wholesaler). the tax remitter sumer, regime the assessment contem- plates tax reimbursement to the wholesaler A Tax Or Remittitur Procedure Credit only and retailer. The instance where Cigarette For Reimbursement Taxes passed on is tax burden cannot be when Cigarette Paid on Intratribal Sales unstamped cigarettes in the licensed whole- “lost, payment potential Because an excessive possession saler’s are stolen or unac- transit, for, storage clearly counted or other- built into the state’s undifferen- (Okl.Sess.L., pertinent text of Section amendment § 37. For 68 O.S.1991 321’s — 16, 1, 1993) supra see note 2. Ch. eff. Jan. adds two addi- § exempted categories; pro- tional the statute now pertinent text of § 38. For 68 O.S.1991 vides: mine). supra (emphasis hereby following exempted see note “The sales are pursuant stamp from the excise tax levied pertinent provisions seq. 39. For the text of 68 O.S.1991 of Section 301 et of this mine). (emphasis supra note see title: cigarettes hospitals “1. All sold to veterans 305(f) 40. The terms of 68 are: operated domiciliary O.S.1991 and state homes for vet- Oklahoma, for erans located in the State of "(f) Any including distributing agents, person, ex-servicemen distribution or sale to disabled wholesalers, carriers, warehousemen, jobbers, in, or or disabled ex-servicewomen interned consumers, having possession retailers and of, hospitals, inmates such or residents of unstamped in this State shall be homes; such liable for the tax on such in case the States; 2. All sales to the United lost, for, same are stolen or unaccounted federally recognized Indian transit, otherwise, 3. All sales to storage or and in such tribe or nation which has entered into a com- presumption pur- event a shall exist for the pursuant pact the State of Oklahoma taxation, poses that such provisions 1 of of subsection C of Section used and consumed in Oklahoma.” of such a tribe or this act or to a licensee terms 321 are: 41. The of 68 O.S.1991 nation, upon payment which the in lieu paid; required by compact has been hospitals sold to veterans “All operated domiciliary homes for veterans federally recognized Oklahoma, 4. All sales to a State of for distribu- located to licensee of such a tribe tribe or nation or ex-servicemen or dis- tion or sale disabled in, upon pursuant tax levied or nation which the ex-servicewomen interned or in- abled of, provisions of Section 4 of this act has hospitals, mates or residents of such homes, paid.” been and all sales to the United States are analy- my not affect hereby exempted stamp The 1992 amendment does from the excise tax writing. Article." sis in this levied *12 cigarette approach, regime tiated tax collection a matur to the state’s collecting cigarette by assessing fair method should be established for track- excise taxes whole ing allowing supply unstamped cigarettes intratribal sales and for either salers who to paid a credit for a remittitur of tax on tribal stores. The or scenario in that case is nearly documented intratribal sales on which ex- identical to parties this. The same paid. legislature type (a cise taxes have been and the same of tax assessment cigarette tax) statutory regime pro- implicated. has amended the excise are While orderly procedure vide a more for doc- the other dealt with a different issue— umenting exemption appli- federal-law federal-court over state tax lia bility Bankruptcy cable intratribal sales.42 Until those issues under effectuated, changes are I would direct the Code46—the Court’s reference adopt provide clearly Vending ap Commission rules which denotes its renewed (a) recordkeeping requirements proval of the statutory process will assessment verify collecting cigarette enable a wholesaler to and document for excise taxes from cigarette (b) unstamped intratribal sales and a mecha- wholesalers who ciga distribute nism which would allow wholesalers rou- rettes to Indian tribes.
tinely to submit these intratribal sales
records to the Commission for refund or CONCLUSION credit. party adversely
A
agen-
affected
cy’s
cognizance
want of
to entertain a con-
D.
stitutional attack must
challenge
renew its
appeal
in an
Clearly
Cognizance
directly
agency
The Commission
Has
or-
preserve
objec-
Cigarette
To Assess A
Excise
der
fundamental-law
Tax
Who,
tions. Once an administrative order that
Against A
Nontribal Wholesaler
final,
Level,
facially
imper-
void
it is
At The Wholesale Transaction
becomes
vious to collateral attack even on constitu-
Unstamped Cigarettes
Sells
To Indian
grounds.
tional
Tribes
though
cigarette
paid by
authority
Even
The Commission has the
to as-
“pass-through” levy
cigarette
against
the wholesaler is a
sess
the wholesal-
price
product
agency
general
added to the
pow-
sold to
ers. The
also has the
retailer,
adjudicate
taxpayer’s protest
this alone will not clothe a
er
assessment,
immunity
against
levy
in-
nontribal wholesaler with
liability
payment
improper
on its transactions
deed excessive
inclu-
because
statutory
federally exempt
tribes.
Our
sion of
intratribal sales.
collecting cigarette
authority’s
excise
scheme43
Failure
the tax
order to
Supreme
taxes is consistent with the U.S.
and non-
show on its
that intratribal
face
pronouncement
properly segregated
Court’s
Tax
tribal sales were
Oklahoma
segregable
distinctly
treated
Commission v. Citizen Band Potawatomi
and hence
There,
facially
Indian Tribe
neither makes an assessment
in-
Oklahoma.44
Court, citing City Vending Muskogee
jurisdic-
nor unveils an absence of
firm
Com’n,45gave
impri
agency proceed-
Tax
tion on the
face of
statutory regime
January
new
is effective
documented sales to its tribal members. 68
301, 309, 321,
426(b).
O.S.Supp.1992
O.S.Supp.1992
§§
346-352, 401, 403.1, 413, 419, 424-429, 1355.
43. See
11(C)
supra Part
for a discussion of the
Indian tribes who have entered into tax com
statutory taxing scheme.
differently
pacts with the State will be treated
to the latter cate
from those that have not. As
44. Oklahoma Tax
Com'n v.
Band Pota
Citizen
pur
gory,
licensed wholesalers will continue
Oklahoma, supra note
watomi Indian Tribe of
stamp,
affix it to the
chase
at-,
ings. If the Commission amounts on the Indian because of assessment some attrib- based contested exempted finality. O.S.1981, 221. intratribal sales from its technical utable to law, However, the exercise of its taxation federal field audit assessment most, was, power an act unauthorized should not be first avenue available for short, jurisdiction. In the con- in excess of to claim credit wholesalers *13 facially tested is not tainted for paid cigarettes exempt- assessment or refund of on cognizance. want ed the tax. should The Commission of promulgate adequately rules which detail agency’s Because the assessment is not cigarette the which a wholesaler method void, perhaps affected facially but most may of paid claim a credit or refund taxing power,47 by an excessive exercise of necessary prove and the evidence the judicially to the it is now too late disturb claim. challenged response taxpay- order attack. impermissible er’s collateral KAUGER, Justice, dissenting. WILSON, Justice, concurring ALMA City Vending Muskogee, (City Inc. specially: Vending) argues the Oklahoma Tax that ruling Commission’s was void lack of specially emphasize I write the need unstamped jurisdiction, ciga and adopt that for the Tax Commission exempted rettes agency approving cigarette tax sold Indian Tribes rules for the Commerce upon claimed ex- virtue of Clause of credits or refunds based The emptions. It is now established that sales United States Constitution.1 United cigarettes Supreme a retailer clothed with the States Court Oklahoma Tax federally registered Indian Comm ’n v. Band Potawatomi In Citizen —Tribe, U.S.-, -, -, federally registered tribe to a member of a dian 908, 1112, 1118, cigarette are from the S.Ct. 112 L.Ed.2d Indian tribe administration, did not tax burden. For ease in address Commerce however, requires Clause; that cigarette tax scheme it held under the our pay ciga- sovereign immunity, the doctrine of tribal wholesalers and col- State cannot tax the sale of rette tax to the Commission then This also that the can buyers. lect the tax from their statu- Indians. It found State tory pre- be collect taxes on to nontribal memb scheme should administered to sales is, exemptions. serve the established That ers.2 provide ciga- should the Commission Potawatomi, the United States Su- with a credit or refund rette wholesalers preme offered the Tax Commission Court paid
procedure when the tax has been pursue suggested might alternatives by a “Indian retail smoke collect the tax from nontribal members. shop” the ultimate consumer who is Court, recognizing most while federally registered Indian member of action, Congressional reliable solution was tribe. suggested might collect sales states tax, cigarette The ma- cigarette penal- tax from wholesalers. assessment interest, case, Supreme jority opinion is not is bottomed on ties and Const, I, provides: Layden, cl. Corp. supra 1. United States art. Petroleum v. Gulfstream 378; Co. GHK note 10 at Kaneb Production v. Nations, foreign regulate Commerce with “To 1392; Co., supra Exploration 10 at note Mullins States, among the several with the Ward, supra note 10 at Because Tribes;” invalidity gov- limits law’s facial now common ern an adjudicative process, agency’s exercise of recent decision 2. This accords must, today, as I we hold that the I would believe Appeals, Court of Sac and Fox Na 10th Circuit juris- and absence between excess distinction diction Comm., tion Tax 967 F.2d v. Oklahoma protects orders from im- administrative (10th Cir.1992). very permissible collateral attacks with the judgments does and orders of same as it force courts.
m might appropri- Court’s solution. This toiler who makes sales of Legislature ate relief—had the Oklahoma within persons this state to for use or Here, provided. so majority consumption is not writ- shall separately show the ing upon has, by a clean slate. judicial paid amount of tax by ap- evidenced fiat, propriate amended apparently package because the on each cig- sold, Supreme United States “in an arettes Court effort the tax shall be collect- helpful” to be ed gratuitous offered some retailer from the ad- user or con- vice sumer. ...” reality unrelated to the of the Okla- homa statutes. Although the majority opinion fails to mention
Because it has majority has held rewritten it in that we order to shift the responsibility payment need not address to tax members, taxes for all the unstamped ciga- this case turns not on ciga- rettes sold rettes, to Indian Tribes to the immunity, jurisdiction, *14 or tax Instead, wholesaler. rather, certain stamps; excep- it is a matter of statutory tions, the majority finds that under 68 O.S. majority construction. The has refused to 304 and 305 the § wholesaler is apply § the statutes as written and has decid- responsible buying affixing the tax sponte ed sua to amend controlling stamps cigarettes to all it sells.3 Without statute to add the wholesaler to the taxa- further statutory analysis 302, 304, of statute, tion § chain. The § 68 O.S. 305, 1356,4 or 68 O.S.1991 the majority § provides § 1991 302 that: § finds that the wholesaler responsible is impact "... The of by the tax levied the sales tax because the wholesaler failed provisions of this article is hereby de- to show any statutory either exemption or vendee, user, clared to be on the consum- to identify the Indian tribe’s ultimate con- er, possessor or cigarettes in this sumer. state, and, paid by when said tax any person, other payment such shall be con- only exception The duty pay payment sidered as an advance and shall by taxes the wholesaler allowed price thereafter be added to the of the majority opinion occurs the wholesaler cigarettes and recovered from the ulti- exemption can establish an under 68 O.S. user_ mate consumer or Every re- 1991 310 and 321.5 Indian tribes are § § 3. Title 68 O.S.1991 304 provides pertinent cigarettes proper stamps § in pro- as law, part: vided ... (f) Any person, including distributing agents, manufacturer, wholesaler, "Every warehouse- wholesalers, carriers, warehousemen, jobbers, man, jobber cigarettes or distributor of in this consumers, having possession retailers and state, carrying as a condition of on such busi- unstamped cigarettes in this State shall be ness, annually shall secure from the Tax Com- liable for the tax on such in case the license, mission a written ...” lost, for, same are transit, stolen or unaccounted in provides .pertinent Title 68 § O.S.1991 in otherwise, storage or and in such part: presumption pur- event a shall exist for the (b) Every ciga- "... retailer who has received taxation, poses that such were manufacturer, wholesaler, rettes from a ... used and consumed in Oklahoma.” required provided to secure a license as Code, for under Section or to affix provides pertinent 4. Title O.S.1991 § stamps required preceding para- as under the part: shall, graph, stamps upon ciga- affix ... all hereby specifically exempted "... There are packages rette ... from the tax levied this article: (c) Any buys unlicensed consumer who direct (A) tangible personal property Sale of or ser- distributor, manufacturer, any jobber, from warehouseman, government vices to the United States or to wholesaler, ciga- any or ... Oklahoma, any political the State of subdivi- forty any rettes in excess of one time state, any agency political sion of this stamps required to which are not affixed the state; subdivision of this ...” shall, by this Article ... secure from the Tax provides pertinent 5. Title O.S.1991 310 § Commission a written license ... and shall part: post surety with the Commission a bond ... comply "(a) Any person conditioned that he will with the rules who sells in inter- shall, regulations filing proper of the Tax Commission and state commerce after bond Commission, pay penalties all and affix to all with the Tax be excused from 835 P.2d —5 1356, imparted and now either of specifically included within However, this term the character of term art. statutory exemptions.
these particularly it is States are. This is evident because sales to the United statutory setting used in the with the same question made three The sales in long- sales tax statute.9 tribes, the Citi- Indian tribes. One of given statutory standing construction to a Potawatomi, furnished the whole- zen Band provision given great weight. It cannot letter copy of a from saler with a Legislative undone Commission— which stated: Oklahoma Tax Commission change long- amendment is April reply your letter of “In standing construction.10 recognize the Citi- please be advised we concurring judgment opinion rely- Indians Okla- zen Band Potawatomi ing being exempt principally from sales tax on 305 reaches the same homa personal finding your purchases tangible result wholesaler’s provisions found property under the with affixed withdrawal (i), Paragraph Article storage Section for sale or distribu- According Title O.S.1971."6 tion marks the taxable event. scenario, storage to this removal 1305(i) provided that Title 68 O.S.1971 § mandates that the wholesaler collect the Government, the States sales the United However, neither tax from the retailer. State, political of its subdivisions *15 position. support 302 nor Sec- § § exempt from sales tax.7 were Section specifically provides tion that the retail- Nevertheless, the repealed. same been er collect the tax from the user or shall in exemption is now found 68 O.S.1991 parties several consumer. Under § exemptions the provides 1356.8 § affixing stamps responsible are either for government, States the state United 1) stamp tax: the paying or the wholesaler Oklahoma, political or subdivisions ciga- required stamps is to affix when the agencies of those subdivisions. Because storage from is rettes are removed and state, not an arm of the the tribe is cigarettes only taxes when the liable for the footing must on a with be stolen; lost, 2) a are unaccounted for or only sovereign nation other listed—the affixing responsible can for retailer be United States. cigarettes if stamps cigarettes the are provides that all sales to the Section purchased from an out-of-state wholesaler ciga- from the States are United stamp cigarettes required who not the is Tax stamp rette excise tax. Because the law; 3) under Oklahoma and an unlicensed interpreted United States with- Commission required stamp tax pay is consumer meaning 1356 to include Indian § unstamped cigarettes purchases if it from sovereign pur- nations for the Tribes the wholesaler. exemp- exemption, the poses of sales tax concurring in expressed extends to Indian Tribes. The view tion statute internally Commission, by continually interpreting judgment opinion is inconsistent 1) an in with 305 because: out-of-state "United States” to include Indian Tribes § 1305(i) provides affixing stamps cigarettes O.S.Supp.1971 he and 7. Title 68 § to the sells ships person part: pertinent to a in some other state....” provides: 68 O.S.1991 321 § Title "(i) government, Sales to the United States hospitals and veterans "All Oklahoma, political or of its State domiciliary operated for homes veterans subdivisions." Oklahoma, the State of for distribu- located in dis- or to disabled ex-servicemen or tion sale 4, supra. see note § 8. Title 68 O.S.1991 in, in- interned or abled ex-servicewomen of, hospitals, or residents of such mates homes, Atchison, Topeka Ry. v. and Santa Fe United all States are sales the United States, (N.D.Ill.1962). F.Supp. stamp hereby exempted from the excise levied this article." Tax Univ. v. Oklahoma 10. Oral Roberts Appellant A of the Brief of the dated 6.Exhibit Comm’n., (Okla.1985). March
H3 the cigarettes interpretation wholesaler who removed sumer. This supported is storage required stamp from neither the Committee accompa- Comments which charge (f) nor retailer for nied the enactment of subsection stamp Legislature tax because the retailer provided becomes 305. The in the responsible 2) affixing stamps; for Comments that the new subsection raised a specifically presumption consumption statute states that the unli- within the censed responsible placed consumers are for the state and the burden on the last taxes unstamped cigarettes. person Had the who had the ownership incidents of Legislature possession viewed the taxable event as the or ciga- unaccounted-for moment the from plain were removed rettes.12 Under the and clear mean- storage unnecessary ing it would be to include of the statute accompanied by the com- provisions for the discussing (f), out-of-state wholesal- mittee comment subsection required. ers—tax would been Legislature have evident did in- Even more obvious is that under 305 the tend responsible for the wholesaler to be pays stamp unlicensed consumer for which are not or stolen lost. directly City Vending Oklahoma Tax Commission. can account the ciga- If the taxable event were the removal rettes. All were sold Indian tribes. logic storage Here, would assume that the whole- last parties having incidents of ownership tribes, saler would be to collect the tax Vending. the unlicensed consumer. goal statutory is to construction Statutes must be construed as consist- legislature determine the intent of the harmony logic, ent whole in every through language portion part used.11 Under given statute should 305(f), responsible possible.13 presume the wholesaler is effect if We that the only ciga- unstamped Legislature does not act vain.14 The lost, rettes Legislature explicitly are stolen unaccounted for in stated 68 O.S.1991 *16 transit, storage ciga- 302, or otherwise. The that the retailer shall collect the tax § question rettes in were lost not or stolen. from the user or consumer.15 Under our scheme, cigarettes statutory The is whether issue the the ultimate burden of for” collecting upon “accounted the wholesaler. The tax the retailer —not the Superior legislative Court of Connecticut in If the Allied wholesaler. intent were Comm’r, tax, Co-op, Grocers Inc. v. for Tax 36 the wholesaler to collect the the 313, 59, Conn.Supp. 411 A.2d 314 wholesaler would be included in the text of interpreted statutory a similar provision. explicitly require 302 and it would not using The the Court natural and usual the retailer to collect the tax. Section ” meaning 305(f) of the provide word de- “unaccounted would not for analysis, termined that it meant that the distributor accounted-for sales. Under this ciga- not be to tell where the responsible would able the wholesaler is not for taxes rettes cigarettes. went ultimate sale to the con- when it can account for the Freeman, 147, 614, Dix, Macy (Okla.1989). Cooper State ex rel. v. 14. 771 P.2d 617 (Okla.1991); Ledbetter v. Oklahoma Alco Comm'n, Beverage holic Laws provides pertinent Enforcement Title O.S.1991 302 in 172, (Okla.1988). P.2d part: O.S.Supp.1965 Every ciga- who 12. Title Committee "... retailer makes sales Comments, provides: persons within for use or rettes consumption this (f) separately presump- shall show "Subsection is new. It raises a the consumption paid by appropri- tion of use or within State amount as evidenced lost, for, cigarettes sold, stolen or unaccounted package cigarettes ate on each placing liability ciga- the for taxes on such and the tax shall be collected the retailer upon the, person had rettes of who the incidents provisions the user consumer. The ownership possession cigarettes of the way shall in no affect the of this section lost, the time stolen or unaccounted for.” of such tax method collection on law_” provided existing as now Piper Corp., 13. Cowart v. Aircraft (Okla.1983). responsibili- places the majority’s opinion, the whole- which Under ty to know an Indian tribes’ on the would be saler is wholesaler —which or non-Indian— necessary already collect ultimate consumer —Indian if the State could is no accordingly. There pay I tax from the wholesaler. provision requires in the statutes which majority opinion be- must dissent from the identity wholesaler to ascertain place cause 68 302 does not O.S.1991 § Assuming consumer. retailer’s ultimate upon the burden of taxation wholesaler accom- arguendo, that this result could be can traced to an when be statutory plished, require would purchaser exempt from taxa- identifiable Legislature by this amendment —not tion. fact, result. reach this Court —to legislation, which Legislature has enacted SUMMERS, Justice, with whom May signed was the Governor Dissenting; KAUGER, joins, Justice very the Act on this issue. amends compact into tax majority allow tribes to enter states In its final footnote the provide agreements with the State and to that we need not determine if OTC’s responsible to be for the for the wholesaler jurisdictional to a collateral order tribally cigarette tax on sold to attack, presented no because evidence are not or licensed stores which owned by City Vending to show that sales were agreement.16 compact included and Indian tribes. I must made Indians disagree. The of the OTC stated order reasoning in circumlocutionary disputed it was City Vending concurring judgment opinion will not Indian to Indians and/or the new Act is read with the stand when case, being directly This we are tribes. concurring judg- previous statutes. a collateral attack on the Act; however, confronted with acknowledges the new ment jurisdiction of the OTC to tax those sales significance of it fails to understand made to Indians or Indian tribes. provision the new act —the Section (1992) federally recognized provides pertinent Indian Oklahoma with 16. Senate Bill 759 All part: or nations of this state.... sales in tribes country by compacting those tribes or A section of law 1. NEW LAW new "SECTION nations and their licensees shall Statutes as Sec- to be codified in the Oklahoma pursuant provisions taxes levied tion 346 of Title ... seq. seq., et et Section 401 Section 301 Legislature that: A. The finds *17 seq. et Title of Oklahoma Section 1350 of right recognizes of Indian 1. Federal law act, Sections 4 and 9 of this ... Statutes and engage ciga- of and nations to in sales tribes new of law SECTION 8. NEW LAW A section products to their members rettes tobacco Statutes as Sec- to be codified in taxation; free of state 424 of Title ... tion sovereign immunity of tribal 2. The doctrine through provisions of Sections 12 of this bring- prohibits of Oklahoma from the State federally recognized apply a act shall not ing against Indian tribe or nation a lawsuit into or nation which has entered a Indian tribe compel to collect state the tribe or nation pursuant compact with the State of Oklahoma country to on sales made in Indian provisions of C of Section of to the subsection or nonmembers of tribe either members or nation to a licensee of such tribe this act or by immunity without a or nation waiver compact during period is effec- that such congressional abroga- the tribe or nation or doctrine; tive. ... tion of the States, 11. NEW LAW A new section of SECTION Supreme Court of the United 3. The Statutes as codified in the Oklahoma law be v. Citizen in 'Oklahoma Tax Commission Oklahoma', ... Section 427 of Title 68 Indian Tribe Band Potawatomi wholesaler, jobber Every do- or warehouseman may provide suggested that a state other ing this state and business within taxes on sales of of collection of state methods cigarettes provided by as in Section 415 of products license made Indi- secure and tobacco may sell to- persons nation, 68 of the Oklahoma Statutes who are not Title an tribes or nations to tribally products to owned or licensed as bacco the tribe or enter- members of ing duty of the mutually satisfactory agreements It shall be the stores this state. into collect, wholesaler, jobber or warehouseman Indian tribes nations.... imposed by by report Section 10 and remit the tax this enact- Governor is authorized C. The products inventory prod- on the tobacco of this act into and tobacco ment to enter tribally owned or licensed store-” compacts sold to a on behalf of the State ucts tax
H5 Constitution, interpreted The Federal in Oklahoma Tax Commission v. Citizen —Tribe,
Band Potawatomi Indian U.S.
-, S.Ct. L.Ed.2d taxing forbids a state from sale smokeshop made a tribal Although an tribal member. the OTC is statute,
given, by jurisdiction col- over taxes, statutory grant
lection of this
jurisdiction cannot exceed that is al- which
lowed the Federal Constitution. such,
As the collateral attack Vending presents
OTC’s order
question of federal jurisdic- constitutional
tion and should addressed Court. OTC lacks to tax the sales smokeshops to tribal members. Washington v. Tribes Confederated Reservation,
Colville Indian 447 U.S. 2069, 2083, 100 S.Ct. 65 L.Ed.2d
(1980). did The OTC these order,
sales from in its taxation but instead
lumped categories the two of sales—those
to tribal member those to non-tribal category
members—into one and assessed
taxa on the entire amount Be- of sales. beyond
cause the OTC acted jurisdic- permitted
tion Commerce Clause Constitution, Federal its Order is facial-
ly Fuller, void. See Scoufos (Okla.1955). *18 WEBB, Petitioner,
Michael Dean Oklahoma, Respondent.
STATE of
No. PC 92-0245. Appeals
Court of Criminal of Oklahoma. June DENIAL ORDER AFFIRMING OF RELIEF
POST-CONVICTION appealed to this Court Petitioner from an order of the District Court of denying County, his second Pottawatomie application post-conviction relief Case