¶60 Today's holding allows city of Seattle and city of Tacoma to reach two thousand miles beyond their borders to tax automobile sales made in Dearborn, Michigan. Ford admits it engages in some business activities in both Seattle and Tacoma, however, argues it is beyond either city's taxing power to tax sales completed outside their jurisdictions.
¶61 Title, ownership, and possession of all Ford's vehicles transfer to the local dealerships when Ford delivers the vehicles to a common carrier at its factory in Michigan. *Page 59 The majority conveniently ignores this fact, claiming it is only necessary to find Ford engaged in some business activities here. I disagree. We must follow the plain meaning of both cities' taxing ordinances to hold sales in Michigan are not taxable under these ordinances, although other business activity which occurs within the municipal jurisdictions may be. Moreover any attempt by a municipality to tax an out-of-state sale would violate the commerce clause.
I. The cities' ordinances do not allow taxation of out-of-state sales
¶62 Both cities have a tax scheme that provides different tax rates based upon different activities. Two classifications possibly apply: Seattle Municipal Code (SMC) 5.45.050(C) and former Tacoma Municipal Code (TMC) 6.68.220(B) (1998) applied to every person in the business of making sales at wholesale within the city,6 while SMC 5.45.050(F) and former TMC 6.68.220(F) are catch-all subsections that applied to all other activities not specifically listed in the respective ordinance. The majority claims the former classification applies. But this section applies to wholesale sales made only within the city. Both cities define a sale as transferring property's ownership or title for valuable consideration. SMC 5.30.050; former TMC 6.68.050 (1978).7
¶63 We apply the same rules of statutory construction to ordinances as we do statutes. Kitsap County v. Mattress Outlet, 153 Wn.2d 506, 509,104 P.3d 1280 (2005). And unambiguous ordinances must be applied by their plain meaning. State v. Villarreal, 97 Wn. App. 636, 641-42,984 P.2d 1064 (1999). There is nothing ambiguous about these *Page 60 ordinances. Seattle and Tacoma both seek to tax Ford's wholesale sales, but these sales occurred outside both cities. A sale occurs where delivery takes place: "a sale takes place in this city when the goods sold are delivered to the buyer in this city. . . ." Clerk's Papers (CP) (Tacoma) at 767 (Tacoma Tax Rule 103, Def.'s Ex. 28); see also WAC458-20-103. To determine where delivery occurs, we must look to the parties' contract and the relevant statutory law.
¶64 According to the contract, title is transferred when Ford delivers the vehicles to a carrier in Michigan. " `Delivery' means the act of transferring possession of tangible personal property." CP (Seattle) at 112 (Seattle Business Tax Rule 5-44-193A(2)(c));8 seealso CP (Tacoma) at 769 (Tacoma Tax Rule 193-A, Def.'s Ex. 29); see also U.C.C. § 2-103(e) (2004) (defining delivery as "the voluntary transfer of physical possession or control of goods"). Ford's shipment contract specified the vehicles were released at the gate when they were transferred to the carrier. This is a standard F.O.B. (free on board) point of shipment contract. Under RCW 62A.2-504, goods are delivered when the seller ships the goods. Specifically, the seller must:
Id.; U.C.C. § 2-504 cmt. 1 ("The general principles embodied in this section cover the special cases of F.O.B. point of *Page 61 shipment contracts. . . ."); see also RCW 62A.2-308 (unless otherwise specified "the place for delivery of goods is the seller's place of business"). These requirements were met in Michigan when vehicles were sent to "Gate Release." CP (Tacoma) at 106-07 (Stipulation of Facts). Once building and testing is complete, a third party carrier inspects the vehicles, then transports them from the factory to a "drop zone," where Ford scans and releases each vehicle at exit (Gate Release). Id. At gate release, Ford transfers title to the dealer, retaining only a security interest in the vehicle until full payment is made. Id. At that point Ford has voluntarily transferred physical possession of the goods; delivery has been made, and Ford is no longer responsible for the goods.9(a) put the goods in the possession of such a carrier and make such a contract for their transportation as may be reasonable having regard to the nature of the goods and other circumstances of the case; and
(b) obtain and promptly deliver or tender in due form any document necessary to enable the buyer to obtain possession of the goods or otherwise required by the agreement or by usage of trade; and
(c) promptly notify the buyer of the shipment.
¶65 While the majority disregards these facts and claims Ford is asking us to construe these ordinances narrowly, majority at 41, Ford is only asking we apply their plain meaning. "Any doubts as to the meaning of a statute under which a tax is sought to be imposed will be `construed against the taxing power.'" Weyerhaeuser Co. v. Dep't of Revenue,106 Wn.2d 557, 566, 723 P.2d 1141 (1986) (quoting Duwamish Warehouse Co.v. Hoppe, 102 Wn.2d 249, 254, 684 P.2d 703 (1984); MAC Amusement Co. v.Dep't of Revenue, 95 Wn.2d 963, 966, 633 P.2d 68 (1981)). The majority reads the cities' ordinances to allow a city to tax any business that engages in any activity that eventually leads to making sales, even when those sales occur outside the city. Majority at 42.
¶66 The majority also ignores the cities' own rules. "Aside from the constitutional limitations of the State's power to tax, [a city] is bound by the explicit provisions of *Page 62 its own rules." City of Tacoma v. Gen. Metals of Tacoma, Inc.,84 Wn.2d 560, 564, 527 P.2d 1314 (1974). Tacoma Tax Rule 193-A provides: "Where the seller agrees to and does deliver the goods to the purchaser at a point outside the state, neither Retailing nor Wholesaling business tax is applicable."10 CP (Tacoma) at 769; see also CP (Tacoma) at 767 (Tacoma Tax Rule 103) ("For the purpose of determining tax liability, . . . a sale takes place in this city when the goods sold are delivered to the buyer in this city. . . ."); see also WAC 458-20-103 ("For the purpose of determining tax liability, . . . a sale takes place in this state when the goods sold are delivered to the buyer in this state. . . ."). Additionally, Seattle Business Tax Rule 5-44-194 provides "Any person(s) who sells or leases personal property to buyers or lesseeswithin the City are taxable under the retailing or wholesaling tax classification. . . ." CP (Seattle) at 120. Ford never sold any vehicles within Seattle and should not be taxed under the wholesaling tax classification.
¶67 The majority relies on a Court of Appeals decision in GeneralMotors Corp. v. City of Seattle, 107 Wn. App. 42, 25 P.3d 1022 (2001) for support. But there General Motors (GM) and Chrysler argued "they [did] not engage in business activities." Id. at 48. And here Ford wisely admits it did engage in business activities. GM and Chrysler, like Ford, also shipped the vehicles "fob factory via common carrier." Id. at 46 (footnote omitted). The General Motors court found there was a sufficient nexus between the companies' activities in Washington and the BO tax.Id. at 53. But because neither GM nor Chrysler made sales in Seattle, the court said: "Although they may not be characterized as direct selling activities, they nevertheless constitute *Page 63 `other business activities'. . . ." Id. at 48. Similarly, Ford's "other business activities" may be taxed, but sales made in Michigan are beyond the purview of either city's taxing power.
II. Taxing out-of-state sales violates the commerce clause
¶68 The commerce clause grants the United States Congress the power to "regulate commerce with foreign nations, and among the several states, and with the Indian Tribes." U.S. CONST. art. I, § 8, cl. 3. The negative implication of this power prohibits a state (or city) from passing legislation that improperly burdens interstate commerce. Okla. TaxComm'n v. Jefferson Lines, Inc., 514 U.S. 175, 179, 115 S. Ct. 1331,131 L. Ed. 2d 261 (1995) ("[W]e have consistently held [the commerce clause] to contain a further, negative command, known as the dormant Commerce Clause, prohibiting certain state taxation even when Congress has failed to legislate on the subject."). Therefore, a local tax is valid only "when the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." Complete Auto Transit, Inc. v. Brady, 430 U.S. 274,279, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977).
¶69 Each city's tax is measured by gross proceeds of out-of-state sales and therefore does not apportion the activities taxed. See StandardPressed Steel Co. v. Dep't of Revenue, 419 U.S. 560, 564, 95 S. Ct. 706,42 L. Ed. 2d 719 (1975); Gwin, White Prince, Inc. v. Henneford,305 U.S. 434, 440, 59 S. Ct. 325, 83 L. Ed. 272 (1939) ("Although the tax, measured by gross receipts, to some extent burdened the commerce, it was held that the burden did not infringe the commerce clause. Since it was apportioned exactly to the activities taxed, all of which were intrastate, the tax was fairly measured by the value of the local privilege or franchise."). No matter the trigger — be it engaging in business activities leading to making sales or making the sales themselves — each city nevertheless is not apportioning its *Page 64 respective tax between activity inside its jurisdiction and activity outside. Rather, each city is taxing 100 percent of sales that occur outside its jurisdiction in violation of the commerce clause. ASARCO,Inc. v. Idaho State Tax Comm'n, 458 U.S. 307, 315, 102 S. Ct. 3103,73 L. Ed. 2d 787 (1982) ("As a general principle, a State may not tax value earned outside its borders.").
¶70 In Tyler Pipe, the United States Supreme Court found "the activities of Tyler's sales representatives adequately support the State's jurisdiction to impose its wholesale tax on Tyler." Tyler PipeIndus., Inc. v. Wash. State Dep't of Revenue, 483 U.S. 232, 251,107 S. Ct. 2810, 97 L. Ed. 2d 199 (1987). But unlike Ford, Tyler Pipe sold its products in Washington. And while Tyler Pipe's activities could be taxed, the Court was careful to note the constitutional limitations on imposing a wholesale tax:
Id. at 251. Clearly, Ford's wholesaling activities were not conducted wholly within Washington; its vehicles were sold in Michigan — title, ownership, and possession are transferred when Ford delivers the vehicles to a common carrier at its factory in Michigan.Thus, the activity of wholesaling — whether by an in-state or an out-of-state manufacturer — must be viewed as a separate activity conducted wholly within Washington that no other State has jurisdiction to tax.
¶71 The cities' tax on sales made in Michigan also burdens interstate commerce because of the threat of double taxation. The Supreme Court has said there is a risk of double taxation "whenever one State's act of overreaching combines with the possibility that another State will claim its fair share of the value taxed." Jefferson Lines, 514 U.S. at 184. For example, the Supreme Court has found that when "[a] substantial part of [the taxed activity] is outside the state . . ., the tax, though nominally imposed upon appellant's activities in Washington, by the very method of its measurement reaches the entire interstate commerce service rendered both within and without the *Page 65 state. . . ." Gwin, White, Prince, 305 U.S. at 438; see also Gen.Motors Corp. v. City of Los Angeles, 5 Cal. 3d 229, 241, 486 P.2d 163, 171,95 Cal. Rptr. 635 (1971) ("The gross receipts arising from this category of transactions must be apportioned in a manner which fairly reflects the proportion of in-city to out-of-city selling activities.").
¶72 Here the vehicles were made and sold in Dearborn, Michigan. Michigan may tax these sales. Jefferson Lines, 514 U.S. at 184 ("It has long been settled that a sale of tangible goods has a sufficient nexus to the State in which the sale is consummated to be treated as a local transaction taxable by that State."). Consequently, when cities in Washington tax these sales, it impermissibly burdens interstate commerce.
¶73 While Ford engages in some business activities within Seattle and Tacoma, its vehicles were sold in Michigan. Under the plain meaning of both cities' ordinances, neither Seattle nor Tacoma is allowed to tax sales in Michigan. Furthermore, allowing this tax clearly violates the dormant commerce clause as it taxes extraterritorial activities and threatens double taxation.
¶74 I dissent.
C. JOHNSON, CHAMBERS, and J.M. JOHNSON, JJ., concur with SANDERS, J.