10 Or. Tax 463 | Or. T.C. | 1987
Submitted on briefs.
Decision for defendant rendered August 31, 1987.
Plaintiff appeals the assessment of Multnomah County Business Income Taxes (MCBIT) for 1982, 1983, and 1984, alleging that income generated from the sale of alcoholic beverages is exempt by virtue of ORS
ORS
"No county or city of this state shall impose any fee or tax, including occupation taxes, privilege taxes and inspection *464 fees, in connection with the production, sale, mixing, serving, transporting, delivering or handling of malt or other alcoholic liquors."
Plaintiff asserts that this "plain and unambiguous" statute precludes Multnomah County from imposing a net income tax on the income derived from the sale of alcoholic beverages. Defendant contends that ORS chapter 473 imposes a privilege tax which is regulatory in nature and does not preempt local government from revenue raising.
While the statute may be unambiguous taken alone, it is not without question when applied in context.1 That is, is a general income tax such as MCBIT imposed "in connection with" the production, sale, mixing, serving, transporting, delivering or handling of liquor? Certainly the MCBIT is not directed to or focused upon those activities. Rather, those activities are only a miniscule portion of the wide range of business activities which may or may not produce income subject to tax. As defendant's brief notes, it is unlikely that the legislature would intend to prohibit all local taxation or licensing which is directed at broad scope activities of which the regulation of liquor is only a part.
The clause "including occupation taxes, privilege taxes and inspection fees" would seem to bear on the character of the "fee or tax" prohibited by ORS
1. Plaintiff's position is rebutted in 2A Sutherland, Statutory Construction § 47.17, at 166, where, in reference to ejusdemgeneris it is stated:
"Where the opposite sequence is found, i.e., specific words following general ones, the doctrine is equally applicable, and *465 restricts application of the general term to things that are similar to those enumerated."
The court, in Wedding v. Wingo,
"This doctrine directs that a general provision of a statute will be controlled and limited by subsequent statutory language more specific in scope."
And the court in Fourco Glass Co. v. Transmirra Products Corp.,
"[T]he law is settled that 'However inclusive may be the general language of a statute, it "will not be held to apply to a matter specifically dealt with in another part of the same enactment." ' " (Cites omitted.)
2. All of the above discussion relative to interpreting ORS
The history of the statute seems to indicate that regulation rather than revenue underlies the purpose of the statute. When the Liquor Control Act was first enacted in 1933, it contained no provision similar to ORS
"No incorporated city or county of this state shall impose any fee or tax in connection with the production, sale, licensing or handling of alcoholic beverages, malt beverages or malt syrups." 1935 Or. Laws ch 427, § 15.
3. In 1949 the legislature added the clause "including occupation taxes, privilege taxes and inspection fees." 1949 Or *466
Laws ch 445, § 16. Throughout its history, it seems clear that the purpose of the state legislature has been to regulate alcoholic beverages. The fact that the privilege taxes of ORS chapter 473 are now codified as a separate chapter does not detract from the long-established purpose of regulation. Consequently, if the privilege taxes imposed by ORS chapter 473 are regulatory in purpose, ORS
The court finds that the purposes of ORS chapter 473 are regulatory. Further, the court finds no language in the statute which would prohibit the imposition of the MCBIT on the income derived by a business involving alcoholic liquors in Multnomah County. If the legislature had intended total preemption, both regulatory and revenue raising, it could have easily so indicated. It has done so in other fields, such as the field of insurance.2 Even in that clearly preempted field, the legislature has provided an exception for "payroll, excise, or income tax" which is imposed on a nondiscriminatory basis.
No prohibition regarding the imposition of a tax based on income is found in ORS
Plaintiff's motion for summary judgment is hereby denied. Defendant's Opinion and Order No. 85-8470 is hereby sustained. Costs awarded defendant.
*467"The State of Oregon hereby preempts the field of regulating or of imposing excise, privilege, franchise, income, license, permit, registration, and similar taxes, licenses and fees upon insurers and their agents and other representatives as such; * * *."