*1 P.2d 426 Arizona, Tax Commis- State STATE Arizona, Appellant,
sion COMPANY, an MACHINERY Appellee. Corporation, 13593.
No. Arizona,
Supreme Court of
In Banc.
Dec. 1978. 23, 1979. Rehearing Denied Jan. Babbitt, Gen., Bruce E. Former Atty. LaSota, Jr., Atty.
John A. Gen. Ian A. Macpherson, Gen., Phoenix, Atty. Asst. apрellant. Hirsch, Phoenix,
Burton G.
Rodney B.
Lewis, Sacaton,
appellee.
STRUCKMEYER, Vice Chief Justice.
appeal
This
arises out of an action
brought by
the Central
Company
for a
refund
sales taxes in the amоunt of
$2,916.62,paid
protest.
Maricopa County
Court of
judg-
entered
ment in
Machinery,
favor of Central
appeal
followed.
reversed.
parties
agreed
in their second
state-
stipulated
to thеse facts: Central Ma-
chinery
corporation
is an Arizona
and main-
Grande, Arizona,
tains
office
in Casa
which is not on an Indian reservation.
1973, agents of
went
nearby
onto
Gila River Indian Reserva-
tion to solicit the sale of
machinery
farm
Farms,
from the Gila River
an enterprise of
Community.
Gila River Indian
Community
is an Indian
Entity existing under
of 48
et seq.
U.S.C.
After a
period
negotiation,
Gila River Farms ex-
ecuted a
order for еleven John
$100,-
Deere tractors at a
price
total
$2,916.62,
137.26. An item of
Arizona’s
Tax,
Privilege
Transaction
was included in
purchase price.
Delivery
total
tractors was made
the John Deere Com-
Grаnde,
pany
in Casa
after servic-
tractors,
ing the
delivered them to the Gila
*2
has taken the busi-
Congress
show that
reservation at
Farms on the Indian
River
reservations so
Sacaton,
trading
did
Machinery
Central
nеss of Indian
remains for
license to trade on
that no room
possess
fully
a federal
in hand
not
and, although it could
burdens
imposing
additional
Indian
state laws
solicitation of
excluded from the
upon
havе been
traders.”
Superin-
business
also said:
The Court
of the Pima
tendent
and collection
“We think the assessment
gave permission
Indian Affairs
Bureau of
to a substantial extent
of this tax would
to sell the tractors
Machinery
to Central
congressional pur-
frustrate the evident
order
River Farms.
ensuring that no burden shall be
pose of
delivery of the tractors F.O.B.
provides
trading
traders for
imposed upon Machinery
Paymеnt
Sacaton.
except
with Indians on reservations
River
on the Gila
by check delivered
was
Congress
by Acts of
authorized
Machinery, if
Central
Reservation.
under
regulations
promulgated
valid
action, will rеmit
recovers in
it
added.)
(Emphasis
Acts.”
those
recovery
amount of
It is clear that Warren
decided
Farms.
preemption.
It is also
theory
of federal
motion,
below,
summary
In the court
by the use of the words “Indian
clear that
Machinery
in favor of
judgment
group
the Court meant a defined
traders”
felt,
so
trial court
entered. The
under
persons
the decision in
carry
statutes to
on the busi-
Tax
v. Arizona
Post
with
trading
ness of
on Indian reservations
(1965),
“These
cert,
denied
authorizing them
tions and
statutes
(1972), rehearing
themselves sufficient
would seem in
Only
meaningful
two
here.
differences ex-
1033, 92 S.Ct.
denied 405 U.S.
cases:
to file
between the
for leave
ist
motion
L.Ed.2d 491
maintain a
rehearing denied
busi-
petition for
did
second
(1972);
possess
оn the reservation and did not
ness
Revenue, 89
v. Bureau of
M.
trader’s license. Neither of these differ-
G.
(1976).
a state tax
and Koоtenai
Moe v.
Salish
Confederated
MACHINERY’S LACK OF A
Reservation, 425
Tribes
the Flathead
of
PLACE
PERMANENT
OF BUSINESS
96
463,
1634, 48 L.Ed.2d
96
U.S.
S.Ct.
251.9(b) provides
25
§
Volume
C.F.R.
(1976):
* *
licensing
“[ijtinerant peddlers
the
of
nothing
“We
in this burden
see
in 25
as traders.” Peddler
defined
C.F.R.
see
self-government,
tribal
frustrates
252.3(i)
person
goods
as “a
who offers
§
219-220,
217,
Lee,
79
v.
Williams
within the exterior boundaries
sale
of the
270,
251,
268,
253
S.Ct.
Reservations,
Navajo
Hopi,
Zuni
or
does
congressional enact-
any
or
runs
a
not do business from fixed location or site
reserva-
dealing
with the affairs of
any of those
on
reservations.” Section 252
McGowan,
v.
tion
practices
Navajo,
deals with business
288,
and, therefore,
Hopi, and Zuni reservations
(1938):
оf the
L.Ed.
‘Enactments
binding
is riot
on
case.
Its definitional
protect and
passed to
federal
section, however,
reasonably
can
be consult-
the
guard its Indian wards
affect
ed to construe
which is without such
§
colony, of
state
operation, within the
such
It
illogical
a definitional aid.
would be
to
enact-
laws as conflict with the federal
“peddler”
that
in
believe
the term
each of
”
Id. at
otherwise be accompanying rettes on the ence of federal laws and required cigarettes enforcement a sales regulations and not their tax on sold to non-In dians, but preempts ability cigarettes which the State’s not on sold to other question.” Although the transaction in the Indian vendor ar he
gued that would suffer an out-of-pocket loss, certainty was that the non-In ECONOMIC IMPACT buyer dian would bеnefit. The effect on majority opinion concludes that the Indian seller was too indirect. barred, question tax in is not In none of the cases a tax is seller, imposed on the upheld is an Indian the consumer who is Agricul- and not on the Indian First directly hit. The direct is on the tural National Bank v. State Tax Commis- non-Indian, effect and the Indian is sion, 2173,20 L.Ed.2d degree to some speculative. In however, questions held that in supra, аnd in this it is the Indian Supreme is not immunity, Court consumer who must bear the bur- bound state court’s characterization den. The subsequent case law is not an a state sales tax was levied a tax. There inroad on which still сontrols this pur- on to the against issue and tax imposed renders the on Cen- bank, was a federal chaser. The illegal. tral Machinery and, like must, respectfully dissent. Supreme ignored Court was not on that the tax state’s contention impermissible. bank and found it
Warren, supra, Supreme has al- Court status of the tax
ready addressed the impermissible it to be
question and held licensed Indian traders. against
when levied