*1
178
(Mo.
1986);
impartial
voegl,
considera-
sеnse after careful
Guinan,
(Mo.
665
325
banc
evidence
the case.”
State v.
S.W.2d
tion of all the
1984),
denied,
873, 105
469 U.S.
S.Ct.
cert.
whole,
that, when read as a
We find
(1984);
circumstance.
Finally, consider we must “[wheth
er the sentence of death is excessive imposed
disproportionate
penalty
crime,
cases, considering both the
similar
COMPANY, Appellant,
evidencе,
OIL
strength
the de
SHELL
sufficiency
565.035.3(3).
fendant.”
§
v.
dispute.
After
of the evidence is not
REVENUE,
OF
DIRECTOR
review,
strength
independent
find the
we
Respondent.
overwhelming. We
of the evidence to be
No. 68871.
repeatedly
propriety
have
reviewed the
sentence for murders committed
the death
Missouri,
Supreme Court of
held
in correctional institutions. We have
En Banc.
excessive
the death sentence to be neither
16, 1987.
June
disproportionate in such cases. State
1987);
(Mo.
Schlup, 724 S.W.2d
bаnc
v.
July
1987.
Rehearing Denied
(Mo.
O’Neal,
S.W.2d 857 State *2 Schnake,
Richard Agee, L. David C. Springfield, appellant. for Webster, Gen., Atty. William L. Melodie Powell, Gen., Atty. City, Asst. Jefferson respondent. BILLINGS, Judge. expectations general assembly....” Id. As in the of other review administra- Company appeals Oil the decision decisions, tive the evidence must be con- Hearing Commission, of the Administrative light sidered in a most favorable to the upheld against peti- the assessment decision, together with all reasonable infer- tioner of St. Louis sales and trans- Hermel, Inc. See ences which it. portation respondent Di- sales taxes *3 Commission, State Tax Initially appellant rector of Revenue. 1978).
sought summary of those review the Missouri Court of Appeals, Western District. Because the facts which the decision follows: requires case construction of the revenue Shell, corporation its a Delaware with state, of this trаnsferred laws Court Houston, Texas, principal markets office opinion the cause to this Court without fuel, including petroleum products, aviation jurisdiction which has exclusive under Mo. offices, At Shell nationwide. its Houston Const, V, art. 3. Affirmed. § has entered into contracts for the sale of The central the Di- issue whether oper- fuel to airlines which aviation several rector’s assessment should be set aside be- ate from Lambert-St. Louis International cause Shell’s sales of aviation fuel at the (Lambert Field) Airport Louis within St. County are in airport Lambert St. Louis esti- County. These contracts include an exempt county sales and way some from gallonage to each mated of fuel to be sold princi- taxes. sales Shell’s oper- not itself airline. Shell does own pal exempt contention is that its sales are storage facility, or pipeline, ate a fuel place it does not maintain a because Insteаd, pump has cer- at Lambert. Shell County. Louis St. exchange agreements Amoco tain fuel with collects, administers, and The Director Company to fulfill Oil which allows Shell provisions enforces the various sales tax fuel contracts there. From its aviation including properly county enacted sales fuel to refinery, Illinois Amoco delivers Di- (authorizing 66.610 taxes. Sections by through pipeline a owned St. tax) county sales and 94.- rector to collect operаted by Pipeline Company but Louis (the county RSMo same as to entity, Pipeline Compa- Amoco yet another tax). transportation sales The Director as- Amoco, ny. equity has no interest sessed Shell for both St. Louis Pipeline Pipeline. Amoco Louis interest in the total amount sales taxes and passes Field the fuel At Lambert $103,009.53 period for the from March through Amoco into the a meter owned per- through February 1981. As Fueling storage of Allied Aviation tanks 621.050, mitted under RSMо § Louis, employ- Inc. Allied Company of St. to the appealed the assessment Commis- much fuel will determine when and how ees hearing parties sion. The waived a formal pipeline as through the as well delivered joint stipulation of facts as and submitted fact, findings receive separate proposed airline will as well quanti- employees and briefs. The Com- measure the conclusions of law fuel. Allied assessment upheld “reading” the Director’s the Amoco mission ty of fuel received county taxes on Shell’s sales of sales a meter ticket re- Allied delivers meter. Airport. fuel at Lambert aviation to each airline flecting this measurement copy of the meter sends a customer and review, deci Upon the commission’s office in administrative ticket to Shell’s authorized upheld sion “shall be when Illinois, fully Brook, billing. Allied Oak competent and sub supported by law and and termi- commencement controls the record.” upon the whole stantial evidence through of deliveries nation 621.193, The Commis RSMo 1986. Section by the for its service compensated mandatory procedural sion must observe pays Allied Shell neither airlines it serves. ques approval of the safeguards and its contract equity interest has clearly cre agency tioned action must not Allied. with “contrary ate a result to ... the reasonable Shell’s the airlines contracts with and the whether a transaction sale taxable exchange agreements provide with Amoco for purpose of the Missouri sales tax is passes title to fuel the aviation from ownership. transfer of title or Kurtz Con- respective crete, Amoco to Shell and then Spradling, passes as it airlines Amoco 860 Transfer of “[t]itle goods at Another stipulation meter Lambert. pass cannot under a contract for sale paid prior states that “Shell has and no contro- tо their identification to the con- tract_” versy exists respect 400.2-401(1) (the with to State sales or Section Uni- question, Code). taxes on the use form ...” 2 con- Commercial Subsection Despite parties’ specify failure to tinues: a state or state
whether
use tax was
explicitly agreed
“Unless
ti-
otherwise
paid, the Commission concluded that Shell
passes
buyer
tle
to the
at the time and
paid
had
state sales tax on the sales of
completes
at
sellеr
his
which the
fuel
aviation
because taxable sales had tak-
performance
reference
physi-
*4
place in
en
Missouri.
goods,
(a)
cal delivery of the
if
...
the
requires
contract
or authorizes the seller
argues
Shell
that in order to be sub
goods
buyer
to send
the
the
does
but
ject
operating
to these
must
taxes it
be
a
require
not
him deliver them at desti-
“place of
County.
business” in St. Louis
nation,
passes
buyer
title
to the
at the
this,
Shell misreads the statutes and
shiрment;
(b)
place
time and
of
but
if the
improperly
secondary
focuses
a
ques
on
destination,
requires delivery
contract
at
county
imposes upon
tion. The
tax
sales
passes
title
on tender there.”
privilege
all sellers “a tax
engag
for the
of
ing
selling
in the
tangible per
business of
stipulated facts do not detail
property
sonal
... at retail to the extent
exchange
agreement
Shell’s
with Amoco
and
the
provided
manner
State
[the
its
the
except
contracts with
airlines
regula
Sales Tax
and the rules and
Act]
passes
one salient fact. Title
at the Amoco
of
tions
the director
pur
of revenue issued
meter from
to Shell
Amoco
and then to the
thereto;
66.605,
suant
...” Section
RSMo
Consequently,
airlines.
of
Shell’s denial
Similarly,
1986.
the
ownership
any
of
or control
the
imposed
is
receipts
tax
“on the
from the
airport operation
unavailing
is
as to the
tangible personal
sale at retаil of all
prop
controlling question of whether this consti
erty or taxable services at retail
the
within
purpose
tutes a sale. For
of the state
...,
[county]
property
if such
and services
taxing statutes,
is a sale at
there
retail
subject
to taxation
the State of
even,
here,
only
as
if its consummation is
Missouri under the
Sales Tax
[State
Act].”
agency
effected
series of
rela
a
94.605.2,
Therefore,
Section
1986.
RSMo
tionships.
question
the threshold
any
whether
аrgument
“place
Most of
a
Shell’s
about
transaction constitutes a sale at retail as
Although
of business” is misdirected.
the
144.010,
defined in Section
RSMo 1986.
statues,
sales tax
66.615.5 and 94.-
see §§
slightly
This statute has been
altered since 620,
(using
language)
RSMo 1986
identical
unchanged
any
this case arose
but is
regulations
Director,
of
12
and the
the
see
significant
respect.
If
relevant
10-5.050, provide
CSR 10-5.545 and
if the transaction is
to state sales
“all
retail sales shall
deemed to be con
may
сounty
apply.
tax
taxes
place
summated at the
of business of the
retailer,”
“any
purpose
statutory pre
sale at retail is defined as
of that
implicated.
by any person
sumption
transfer made
“The
...
not
obvious
to,
ownership of,
tangible personal
purpose
provision
or title
of this
was to fix the
property
purchaser,
might
for use or con
taxable situs of transactions which
sumption
resale in
form as
have a nexus
more than one munici
not for
tangible
pality.”
personal property,
Company
for a valuable
Fabick and
v. Schaff
_”
consideration;
ner,
144.010(8).
745
Section
S.W.2d
in question emphasize
attribute then
Both
the statutes
determinative
(1950)
purpose by additionally providing
this
S.W.2d 567
of its conten-
one
governmental
when a retailer has more than
tion
entity
that a
can be
However,
Missouri a sale is deemed to be
estoppel.
bound
collateral
the initial
consummated where
order is tak-
grounded
holding
the Matthews court
its
necessary
en. No such choice is
here.
on the
representation
doctrine
virtual
entirely
These sales are
consummated
parties
found that
to the two suits
where, Shell, through
Louis
its
essentially
were
identical.
303-
See id. at
fuel,
agents,
pass-
delivers the aviation
Still,
argues
plete
Transit, Inc.,
Auto
430 U.S. at
purposes
determining
business.” For
of
tains a presence at Lambert In a seller of Field equipment sought declaratory judgment which it fulfills its contracts with a operate airlines which sought preclude imposition there. Shell’s sales to of the municipal City example Jefferson sales tax to its An application of the rule’s is regard transactions. business Pabick’s salesmen to deliveries from outside of the equipment solicited sales of the from cus- State of Missouri is found in 12 CSR 10-5.- 070(1)(B). tomers both within outside Jefferson It reads as follows: City. purchase The sales orders were then Stone, Example: purchaser Ms. a Mo. accepted by Fabick at its office in Jeffer- City, located in Sun has a mail order City. Upon approval sales, son catalog Company, from Roсk a vendor equipment was delivered to its customers Mo., located outside the state of with no (1) by Fabick: from its office in Jefferson office, property or salesmen in Mo. Ms. City point Missouri; (2) to another Stone sends an order the mail to Rock point City from a outside of Jefferson to Company for merchandise to be delivered Missouri; point (3) another from out- to her of business common carri- Missouri, point side of Missouri to subject er. Ms. Stone to the Mo. use beyond either within or the limits of Jeffer- if storage, tax the merchandise is for use City. son Id. at 739. consumption. subject The sale is not city to sales tax.1 In upholding the assessment the sales transactions, tax to all of the Here, pur- the airlines have contracted to exception of those to out-of-state custom- fuel Company, sup- chase from Shell Oil ers, explained Houston, this Court plier that: located in Texas with no office, property or salesmen Missouri. purpose “place obvious [the purchase arrangement includes an esti- provision was to fix the tax- business”] gallonage mated annual sold. As a be might able situs of transactions which part “exchange agreement” of an between have a nexus with more than one munici- Company Compa- Shell Oil and Amoco Oil pality. staggering administrative ny, the fuel is delivered via a
problem would be created if each sale
metering equipment
operat-
owned and/or
subjected
scrutiny
were
ex-
as to the
Company
ed Amoco Oil
from an Illinois
point
passage
act
of title. The Gener-
refinery
purchasers
places
at their
Assembly
al
intended to
such
avoid
diffi-
view,
my
sale
St. Louis.
culty by determining in advance the situs
is not
either to a local sales tax or
of the taxable event.
to a
sales tax.
Although
factually
Id. at 745.
Fabick
give
legitimate
These facts also
rise to a
distinguishable
case,
present
from thе
imposition of
claim that
such taxes creates
concept
passage
that the location of
of title
upon
an unconstitutional burden
interstate
principle.
remains a
irrelevant
viable
It
Complete
commerce. Under
Auto
serves to ease administration of both intra-
test,
a tax can
sustained
Transit2
state and mierstate state commerce trans-
against
challenge if
a Commerce Clause
actions.
*7
activity
the tax is assessed on
an
interpretation
Further
for this
is
State,
taxing
nexus
“substantial
with the
regulations.
found in the Director’s own
fairly apportioned, does not discriminate
See, 12 CSR 10-5.050 and 10-5.545. It is
against
fairly
interstate
and
commerce,
purposes
stated therein that for
of
the
both
provided by
related to the services
tax,
transportation
sales tax and
sales
“all
276,
State.”
at
at 1079.
Id.
S.Ct.
conclusively presumed
retail sales are
to
parties
stipulated
have
that:
have been consummated at the
of
office,
re-
no sales
adminis-
seller/retailer without
Shell maintains
office, store,
gard
point
passage
to the location or
of
of
trative
warehouse or other
Airport,
any-
facility
title....
The sale is consummated at the
similar
at the
location,
Missouri,
point
seller’s
not at the
of deliv-
where else
the State of
ery.”
any way
participates
the sale
Transit,
example
Complete
Brady,
1. An identical
is found
in CSR 10-5.-
2.
Auto
Inc. v.
430 U.S.
560(1)(B)
274,
applying
transportation
1076,
(1977).
for
97 S.Ct.
ation, directly Robert refinery to Amoco Collector of pursuant Montgomery County, Missouri, Illinois to the sales contracts en- into Shell and the tered between airlines in Respondent.
Houston, Texas. Thе fuel is then delivered No. 51775. pipeline means of a between two meter located in sites which are different states. Appeals, Missouri Court of fuel is thus measured it when enters District, Eastern pipeline River, Illinois, at Wood Division One. it storage when leaves the at Airport. tanks None of the 10, March 1987. equipment described or facilities are owned operated by Company. Shell Oil apparent There is an lack of substantial
connection with Missouri on the facts in case. fail They satisfy the nexus Complete See,
test Auto e.g., Transit. Hess, Dept.
National Bellas Rev enue, 386 U.S. 87 S.Ct. (cannot (1967)
L.Ed.2d 505 impose state use
tax on only out-of-state seller when connec
tion with in taxing jurisdiction customers
delivery goods common carrier or mail);
the United States Miller Bros. Co. v. Maryland,
State
347 U.S.
74 S.Ct.
(1954)(Delaware
tion cannot be Maryland burdened with use
tax where its Mary connection with
land customers goods was general advertising Maryland); Dept. Revenue,
Norton Co. v.
340 U.S.
(1951) (Illi
S.Ct.
nois tax sustained on Massa corporation
chusetts with office in Illinois all
as to except to Illinois customers
on those directly orders sent deliv from
ered the head office in Massachu
setts). Hearing
The Administrative Commis-
sion’s supported by compe- decision is not
tent and substantial of a evidence taxable
event, and consequently an uncon- creates
stitutional on burden interstate commerce.
I respectfully dissent.