concurring:1
I concur to mention some additional distinctions between our business and occupation tax structure and the electrical energy tax that was held invalid in Arizona Public Service Co. v. Snead, 441 U.S. 141, 99 S.Ct. 1620, 60 L.Ed.2d 106 (1979). Under the taxing scheme enacted by the State of New Mexico, a producer of electricity in New Mexico who sold the electricity out-of-state paid a 2 percent tax that would not have been collected if the electricity had been sold in New Mexico. In effect, then, New Mexico taxed separately the production of electric power for export.
Under New Mexico law distributors of electrical energy were liable to payment of a gross receipts tax of 4 percent.2 This tax, enacted in 1953, was not related to electricity generation; the utility would have paid the same 4 percent if it had been a door-to-door distributor of bubble gum.3
When the New Mexico electrical energy tax4 was imposed, the statute gave credit for the electrical energy tax against the New Mexico gross receipts tax — a credit that could be used only by in-state, New Mexico producers/distributors. Thus, although New Mexico was entitled to tax the production of electrical energy, it failed to *512tax both the domestic and foreign producers equally because New Mexico, in effect, refunded the tax to domestic producers through a tax credit that applied to an entirely unrelated tax. That is the difference between pre-Snead, New Mexico and today’s West Virginia. What if New Mexico had given compensating credits against domestic producers’ turnpike tolls or had given them a credit toward the New Mexico vehicle licenses of power company trucks? These examples make clear that the electrical energy tax and its compensating credit for in-state producers explicitly discriminated against interstate commerce.
West Virginia, does not refund the electricity generation tax to domestic producers; West Virginia taxes domestic producers more heavily because they do more in West Virginia. But at first blush West Virginia’s scheme appears similar to New Mexico’s scheme because we have one subsection of the West Virginia Code that applies to foreign producers and another that applies to domestic producers. Our tax for both domestic and foreign producers, however, is calculated on exactly the same basis, namely on the value of electricity manufactured, transmitted, and distributed.
The structure of W. Va. Code, ll-13-2d [1978] and ll-13-2m [1978] discloses that West Virginia taxes all the electrical utilities equally along a continuum that starts with manufacture of the power and ends with its delivery to the consumer. New Mexico’s tax was levied only upon electricity manufactured; the credit, however, was against gross domestic sales. In evaluating the applicability of Snead, supra, to the West Virginia business and occupation tax it is important to point out that the New Mexico tax gave credit for one type of tax — an electrical energy tax — against another type of tax, namely a sales tax.
In state statutes that affect interstate commerce, words of art or characterizations can be more significant than in almost any other area of law. Phrases such as “privilege of doing business” or “general excise” can make or break a state statute. The Supreme Court has held that such “magic words or labels” cannot validate an otherwise invalid tax, but may be capable of disabling “an otherwise constitutional levy.” Railway Express Agency v. Virginia, 358 U.S. 434, at 441, 79 S.Ct. 411, at 416, 3 L.Ed.2d 450 (1959).
Under the Supreme Court’s recent view of state taxation of interstate commerce, a state tax on the “privilege of doing business” is not per se unconstitutional in the absence of a claim “that the activity is not sufficiently connected to the State to justify a tax, or that the tax is not fairly related to benefits provided the taxpayers, or that the tax discriminates against interstate commerce, or that the tax is not fairly apportioned.” Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, at 287, 97 S.Ct. 1076, 1083, 51 L.Ed.2d 326 (1977), reh. den. 430 U.S. 976, 97 S.Ct. 1669, 52 L.Ed.2d 371 (1977). Accordingly, West Virginia’s business and occupation tax passes constitutional muster. The entire process of providing electricity to the ultimate consumer is taxed. If the whole process goes on in West Virginia, then West Virginia taxes manufacture, transmission, and distribution. But if only manufacture occurs in West Virginia, West Virginia taxes only manufacture. Thus the tax is fairly apportioned and violates neither the Constitution of the United States or 15 U.S.C. § 391 (1976).
In order to understand the legality, under Snead, supra, of West Virginia’s business and occupation tax structure as applied to out-of-state utilities one must look for a moment at the nature of the electric utility business. Approximately 90.8 percent of the value of electrical energy at the point of consumption is attributable to the cost of manufacture. For example, if we study the 1983 Annual Report of the Appalachian Power Company we find that its production of power (manufacture) expenses were $495,741,691 while its bulk transmission costs were only $15,981,809 and its cost of low voltage distribution to consumers was only $41,147,842. Consequently, the biggest overall activity in the electric utility business is manufacture.
The only reason that West Virginia taxes generation of power for out-of-state con*513sumption under W.Va. Code, ll-13-2m [1978] and generation for in-state consumption under W.Va.Code, ll-13-2d [1978] is so that out-of-state producers will not pay tax on the value of transmission and distribution activities. The tax for in-state consumption is higher than the tax on out-of-state consumption because West Virginia also taxes transmission and distribution for in-state producers. Under the West Virginia business and occupation tax statutes everything that an electric utility does in the State of West Virginia — whether a foreign or domestic producer — is taxed at 4 percent. Manufacturers of electrical energy for sale inside West Virginia are treated exactly as manufacturers of electrical energy for sale outside of West Virginia.
For our purposes here it is important to point out that West Virginia makes no effort to exempt in-state producers and distributors from the burden of the tax on electrical energy production. This lack of discrimination is made possible because West Virginia has always had a business, and occupation tax on the public utility business. New Mexico ran afoul of 15 U.S.C. § 391 (1976) because, for all intents and purposes, New Mexico taxed out-of-state producers on the basis of generation and in-state producers on the basis of gross receipts (sales). Since New Mexico relied upon a gross receipts (sales) tax to raise revenue from producers of electricity in New Mexico it had no choice but to enact a subsequent special electrical energy tax to capture revenue from utilities generating power in New Mexico to be sold outside of New Mexico. Without New Mexico’s 2 percent tax credit against the gross receipts tax, New Mexico consumers would have had their rates increased by 2 percent.
What New Mexico did was entirely logical, but also probably unconstitutional; at least we know that it was against the subsequently enacted 15 U.S.C. § 391 (1976). In New Mexico’s case the substance of the tax was reasonable but the form was unconstitutional. The Supreme Court’s overruling of Spector Motor Service v. O’Connor, 340 U.S. 602, 71 S.Ct. 508, 95 S.Ct. 573 (1951) in Complete Auto Transit Inc. v. Brady, supra, implies that triumphs of form over substance are no longer fashionable in determining whether a tax is a burden on interstate commerce. At some point, however, form becomes substance: it is a fine line, but it was crossed by New Mexico. Under Complete Auto, supra, West Virginia is on the constitutional side of the line as well as being within 15 U.S.C. § 391 (1976).
It may appear initially that the distinction between New Mexico’s 2 percent credit for the electrical energy tax against the New Mexico gross receipts tax versus West Virginia’s exemption from the operation of W.Va.Code, 11-13-2m [1978] for local utilities paying tax under W.Va.Code, ll-13-2d [1978] is a distinction without a difference. But nothing could be further from the truth: there is a difference and that difference relates to the fact that West Virginia producers and distributors of electricity are not exempt from the burden of W.Va.Code, ll-13-2m [1978] but, rather, are subjected to exactly the same burden plus the additional tax on transmission and distribution provided in W. Va. Code, ll-13-2d [1978]. If, indeed, we had imposed a special tax on the generation of electric power and then given West Virginia producers/distributors of power a credit against an entirely unrelated sales tax we would be within the purview of Arizona Public Service Co. v. Snead, supra. But we didn’t!
. Originally I noted a possible dissent in this case because it appeared that the West Virginia situation was controlled by Arizona Public Service v. Snead, infra. But as I methodically worked through the New Mexico and West Virginia tax schemes, my dissent became a concurrence. I now agree with the majority’s opinion and add this concurrence only to explain my own reasoning in the hope that I might save work for others.
. NMSA 7-9-1 to 7-9-81 [1978] sets out New Mexico's general excise tax.
. The tax imposed on the New Mexico electric utilities was a general excise tax that applied in equal measure to all other businesses within the State. That section, NMSA 7-9-4 [1983], in its present incarnation reads: “A. For the privilege of engaging in business, an excise tax equal to three and three-fourths percent of gross receipts is imposed on any person engaging in business in New Mexico. B. The tax imposed by this section shall be referred to as the ‘gross receipts tax.’ ”
.NMSA 7-18-1 to 7-18-6 [1978]. New Mexico's electrical energy tax, repealed in 1982, related to the imposition and rate of tax on the generation of electricity and required reports or remittances of persons subject to the tax.