dissenting.
I respectfully dissent. I disagree with the majority opinion that what relators attempt to do here is challenge the sufficiency of the evidence relied on to apportion taxes.
In Bi Go Markets, Inc. v. Morton, 843 S.W.2d 916 (Mo. banc 1992), we considered whether Missouri must apportion property tax on an airplane regularly kept, hangared and serviced in Missouri but owned by a corporation domiciled in New Hampshire. The aircraft made thirteen stops in New Hampshire out of a total of six hundred stops and was present overnight in that state three times. We held Missouri is not obligated to apportion unless and until the taxpayer establishes New Hampshire as a tax situs by showing that the property is deriving substantial opportunities, benefits and protections from New Hampshire by habitual and continuous use within New Hampshire. In Bi Go Markets we relied on Peabody Coal Co. v. State Tax Commission, 731 S.W.2d 837 (Mo. banc 1987), a similar airplane ease. “Property does not become subject to multiple taxation simply because it is often taken across a state line.” Peabody Coal Co. 731 S.W.2d at 839.
Missouri’s right to assess an unappor-tioned tax on the trucks in the present case, in the absence of the taxpayer establishing a tax situs elsewhere, is even stronger than in either Bi Go Markets or Peabody Coal Co. because Missouri is both the domicile of the owner as well as the home base for the trucks. The rule is well established that a “taxpayer owning rolling stock cannot avoid the imposition of its domicile’s property tax on the full value of its assets merely by proving that some determinable fraction of its property was absent from the State for part of the tax year.” Central R.R. v. Pennsylvania, 370 U.S. 607, 611, 82 S.Ct. 1297, 1301, 8 L.Ed.2d 720 (1962) (reaffirming New York Central R.R. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155 (1906)). “Accordingly, the burden is on the taxpayer who contends that some portion of its total assets are beyond the reach of the taxing power of its domicile to prove that the same property may be similarly taxed in another jurisdiction.” Id. 370 U.S. at 613, 82 S.Ct. at 1302.
The assessor in the present case does not even purport to require a showing by the taxpayer that the trucks have acquired a tax situs in another state. Relators need not and did not direct their request for a writ of mandamus to the process for apportioning ad valorem property taxes nor to the quality or quantum of proof required by a taxpayer to make the requisite showing for apportionment to apply. Rather, relators sought to use the writ to direct the assessor to require the taxpayer to establish a tax situs for the trucks outside Missouri before the assessor undertakes to apportion the property. The duty of an assessor to require such a showing before undertaking the process of apportionment is a simple, definite duty clearly imposed by law. I would leave it to the assessor to determine what quality and quantum of proof is required of a taxpayer to meet this requirement as well as to determine an appropriate procedure by which to accomplish the apportionment. However, I do not believe that an assessor has any discretion with respect to whether such a finding is required before apportionment is applicable. By apportioning automatically upon receiving, the mileage reports from the Highway Reciprocity Commission, the assessor is apportioning merely upon a showing that these trucks have been driven outside the state of Missouri. This showing is clearly insufficient to establish a tax situs for the trucks in a state other than Missouri.
I would hold that relators have standing to enforce this simple, definite duty clearly imposed by the law. A writ of mandamus is appropriate under these circumstances. See State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992), and the discussion of that case in the majority opinion.
I would reverse.