specially concurring:
The issue for us to decide is not whether the trial court’s determination was contrary to the manifest weight of the evidence but whether the trial court properly determined that the Department’s determination was contrary to the manifest weight of the evidence. I conclude that the trial court was in error in its determination and agree that its judgment should be reversed.
Section 3(b) states that the stock must be “moving in interstate commerce” in order for the use to be exempt. The statutorily stated purpose of the exemption of section 3 is to prevent “multistate taxation.” Burlington placed strong emphasis upon the question of whether the imposition of the tax there would violate the commerce clause thus indicating that the legislature intended that the exemption of section 3(b) be extended only so far as mandated by the commerce clause. I agree with at least that much of Burlington, but do not agree with that court’s restrictive interpretation of commerce clause limitations on the taxing power.
Burlington ruled that imposition of a use tax without apportionment on railroad equipment such as switch engines and commuter cars used to transport goods and passengers moving in interstate commerce would be a federally impermissible burden on interstate commerce even if the equipment never left Illinois. However, that logic was refuted by Department of Revenue of Washington. There an excise tax upon the occupation of stevedoring imposed upon a firm operating only in the State of Washington but handling goods in interstate and foreign commerce was upheld. The court stated that a State may tax the instrumentalities of interstate commerce so long as (1) an obvious nexus between the State and the objects taxed exists, and (2) the tax is fairly apportioned so that there is no unreasonable multistate taxation of the instrumentalities of interstate commerce.
The majority opinion is not clear as to whether it is holding (1) that the Department could have found that there was no out-of-State use of the equipment, or (2) that even if there was out-of-State use the rolling stock exemption was still inapplicable. If there was no out-of-State use of the equipment, analogy to Department of Revenue of Washington would make the exemption inapplicable even though the equipment was used to aid the movement of interstate commerce. However, even if State lines were crossed in use of the equipment, the oral evidence made clear that it was infrequent and on an irregular basis. Under these circumstances there is no real threat of multistate taxation, and the commerce clause would not require that the use tax be apportioned to the use in Illinois. A case on point is Central R.R. Co. v. Pennsylvania (1962), 370 U.S. 607, 8 L. Ed. 2d 720, 82 S. Ct. 1297. In that case the court upheld State imposition of a property tax on the full value of freight cars belonging to a railroad operating entirely within the State but running regularly on other railroads outside the taxing State but not on a fixed schedule. The court concluded that there was no indication that any other State had acquired taxing jurisdiction of the cars. The case at bar is factually even less of a commerce clause problem. Here the use of the rolling stock in other States was not only unscheduled but was at most very irregular. In the case at bar there was no indication that any other State was in a position to burden the equipment with an additional use tax, and in order for a taxpayer to establish a commerce clause violation the burden is upon him to show the threat of disproportionate multistate taxation. Pan Am World Airways, Inc. v. Duly Authorized Government of Virgin Islands (3d Cir. 1972), 459 F.2d 387; McKinnis Travel Service, Inc. v. State (1970), 78 Wash. 2d 229, 472 P.2d 392.
Since no commerce clause violation has been shown, it would be constitutionally permissible for Illinois to impose an unapportioned use tax. Since I am persuaded by Burlington that the General Assembly intended to fully tax equipment’s use whenever constitutionally permissible, I concur with the result the majority reaches.