Northwest Airlines, Inc. v. Wisconsin Department of Revenue

SHIRLEY S. ABRAHAMSON, C.J.

¶ 68. (dissenting). "The very purpose of the Commerce Clause was to create an area of free trade among the several States."1 The Wisconsin tax system favoring a Wisconsin hub carrier is a "homer," that is, it favors home air carrier companies. Whatever else can be said about Wis. Stat. § 70.11(42), it flies in the face of the purpose of the Commerce Clause.

¶ 69. The majority opinion concludes that 49 U.S.C. § 40116 (2000)2 precludes Commerce Clause review of the hub exemption for ad valorem taxation in Wis. Stat. § 70.11(42) (2003-04) .3 Applying the test that the majority opinion sets forth regarding when a federal statute precludes Commerce Clause review of a state tax law, I conclude that Congress has not made it "unmistakably clear" that § 40116 authorizes the discriminatory tax created by the Wisconsin tax system favoring a Wisconsin hub air carrier company. The Wisconsin tax system favoring a Wisconsin hub air carrier company must therefore be analyzed to determine whether it imposes an impermissible burden on interstate commerce. Because I conclude that the Wisconsin tax system favoring a Wisconsin hub carrier *239imposes an impermissible burden on interstate commerce, interfering with the very purpose of the Commerce Clause, I dissent.

I — 1

¶ 70. The first step in determining whether a state statute interferes with Congress's authority to regulate interstate commerce is to determine whether Congress has authorized the type of statute at issue. A statute is spared review under the implied limitations of the Commerce Clause4 when Congress has provided "unmistakably clear" direction that a state statute is exempt from such review.5 "When Congress has struck the balance it deems appropriate, the courts are no *240longer needed to prevent States from burdening commerce, and it matters not that the courts would invalidate the state tax or regulation under the Commerce Clause in the absence of Congressional action."6

¶ 71. In contrast, the United States Supreme Court has also explained that, when Congress has not " 'expressly stated its intent and policy' to sustain state legislation from attack under the Commerce Clause, [a court has] no authority to rewrite its legislation based on mere speculation as to what Congress 'probably had in mind.' "7 State laws that "discriminatorily regulate or unduly burden interstate commerce are presumptively unconstitutional unless Congress enacts legislation to the contrary."8

¶ 72. To determine whether 49 U.S.C. § 40116 authorizes the hub exemption at issue in the instant case, I first set forth the state hub exemption and then determine whether § 40116 makes "unmistakably clear" that the Wisconsin hub exemption is spared analysis under the Commerce Clause.

¶ 73. Wisconsin Stat. § 70.11 provides for classes of property exempt from property taxation. One of the exemptions is for an "air carrier company" with a hub facility in the State.9

*241¶ 74. Section 70.11 defines a "hub facility" as follows:

a. A facility at an airport from which an air carrier company operated at least 45 common carrier departing flights each weekday in the prior year and from which it transported passengers to at least 15 nonstop destinations, as defined by rule by the department of revenue, or transported cargo to nonstop destinations, as defined by rule by the department of revenue.
b. An airport or any combination of airports in this state from which an air carrier company cumulatively operated at least 20 common carrier departing flights each weekday in the prior year, if the air carrier company's headquarters, as defined by rule by the department of revenue, is in this state.10

¶ 75. The question, then, when considering 49 U.S.C. §40116, is whether Congress with "unmistakable clarity" endorsed state taxation statutes that discriminate in taxing air carrier companies based on whether the air carrier company has a certain number of flights originating in the taxing state and whether the air carrier company has a headquarters in the taxing state. I conclude that Congress did not do so.

¶ 76. As the majority opinion points out, three subsections of 49 U.S.C. § 40116 are relevant in the instant case. First, § 40116(b) prohibits four types of taxation on air carrier companies:

(b) Prohibitions. Except as provided in subsection (c) of this section and section 40117 of this title, a State, , a political subdivision of a State, and any person that has *242purchased or leased an airport under section 47134 of this title, may not levy or collect a tax, fee, head charge, or other charge on—
(1) an individual traveling in air commerce;
(2) the transportation of an individual traveling in air commerce;
(3) the sale of air transportation; or
(4) the gross receipts from that air commerce or transportation.11

¶ 77. Section 40116(d) prohibits other practices that the Congress deemed unreasonable burdens and discrimination against interstate commerce:

(d) Unreasonable burdens and discrimination against interstate commerce.
(1) [definitions] ....
(2) (A) A State ... may not do any of the following acts because those acts unreasonably burden and discriminate against interstate commerce:
(i) assess air carrier transportation property at a value that has a higher ratio to the true market value of the property than the ratio that the assessed value of other commercial and industrial property of the same type in the same assessment jurisdiction has to the true market value of the other commercial and industrial property.
*243(ii) levy or collect a tax on an assessment that may not be made under clause (i) of this subparagraph.
(iii) levy or collect an ad valorem property tax on air carrier transportation property at a tax rate greater than the tax rate applicable to commercial and industrial property in the same assessment jurisdiction.
(iv) levy or collect a tax, fee, or charge, first taking effect after August 23, 1994, exclusively upon any business located at a commercial service airport or operating as a permittee of such an airport other than a tax, fee, or charge wholly utilized for airport or aeronautical purposes.12

¶ 78. Section 40116(e) permits certain types of taxes and charges except as provided in 49 U.S.C. § 40116(d):

(e) Other allowable taxes and charges. Except as provided in subsection (d) of this section, a State or political subdivision of a State may levy or collect—
(1) taxes (except those taxes enumerated in subsection (b) of this section), including property taxes, net income taxes, franchise taxes, and sales or use taxes on the sale of goods or services; and
(2) reasonable rental charges, landing fees, and other service charges from aircraft operators for using *244airport facilities of an airport owned or operated by that State or subdivision.

¶ 79. Nowhere in 49 U.S.C. § 40116 is it "expressly stated" that a discriminatory tax exemption for an air carrier company that has a hub in the taxing state is authorized. Nothing in 49 U.S.C. § 40116 expressly permits the hub exemption in Wis. Stat. § 70.11. Section 40116(e) permits taxation of an air carrier company's property, but it neither approves nor prohibits taxation of an air carrier company's property that discriminates against certain air carriers based on their connection to the taxing state. Thus, there is nothing in the text of the statute that supports the majority opinion's proposition that Congress has made it "unmistakably clear" that a state may provide tax exemptions based on the amount of business an air carrier company does within a state.

¶ 80. Nothing in 49 U.S.C. § 40116 prohibits the hub exemption in Wis. Stat. § 70.11. That is, none of the various prohibitions in § 40116(b) and (d) applies to § 70.11. Nothing in 49 U.S.C. § 40116 expressly prohibits a discriminatory tax exemption for an air carrier company that has a hub in the taxing state. That 49 U.S.C. § 40116(d) does not prohibit the hub exemption does not mean that Congress, in enacting § 40116, made it "unmistakably clear" that a tax scheme like Wisconsin's hub exemption is spared Commerce Clause scrutiny.

¶ 81. In sum, the federal statute permits certain taxes and prohibits certain taxes, but is silent about a tax exemption such as the one in Wis. Stat. § 70.11; §70.11 fits neither the permitted nor prohibited classes. The majority errs when it declares that the *245structure of 49 U.S.C. creates two types of taxes on air carrier companies and that taxes not prohibited under either subsection (b) or (d) are authorized by subsection (e).13 Because the majority begins its analysis with this erroneous conclusion about subsection (e), its ultimate conclusion is, by definition, wrong.

¶ 82. The case law supports my reading of 49 U.S.C. § 40116 as not rising to the level of "unmistakably clear" authorization of discriminatory tax exemptions such as the hub exemption. In Northwest Airlines, Inc. v. County of Kent, Michigan, 510 U.S. 355, (1994), the United States Supreme Court recognized that the predecessor to § 40116(e) was a savings clause.14 That is, § 40116(e) is intended to make clear that certain state taxes and fees that might otherwise have been prohibited by § 40116(b) and (d) are not prohibited.15 Section 40116(e) was intended to preserve then-existing state tax powers rather than to confer new powers to tax on the states.

*246¶ 83. The United States Court of Appeals for the First Circuit reached a similar conclusion, stating that 49 U.S.C. § 40116(e), "[f]ar from a clear manifestation of congressional intent to ... [create new rights]... merely preserves certain rights of taxation already held by the states."16 In short, nothing in § 40116 expressly authorizes a tax exemption such as the hub exemption.

¶ 84. The majority opinion cites two cases as supporting the proposition that 49 U.S.C. § 40116 authorizes the tax at issue in the instant case. However, both of those cases are inapposite to the issue currently before the court.

¶ 85. In American Airlines v. County of San Mateo, 912 P.2d 1198 (Cal. 1996), the California supreme court held that the predecessor to 49 U.S.C. § 40116(d) did not prohibit railroad and air carrier property from being taxed at different rates. Personal property of air carrier companies was assessed at 100% of full market value; railroad personal property was assessed at 70% of full market value. Even assuming that the California court is correct, this analysis does not answer the statutory "unmistakably clear" question presented in the instant case for two reasons.

¶ 86. First, the instant case deals not with discrimination between types of transportation property, but, rather, between an in-state and out-of-state air carrier company's property. Second, even if these two situations were analogous, concluding that 49 U.S.C. § 40116 does not prohibit certain types of discrimination is very different from concluding that the statute authorizes (with "unmistakable clarity") this type of discrimination. Nothing in § 40116 supports such an inference.

*247¶ 87. The majority also relies on Department of Revenue of Oregon v. ACF Industries, 510 U.S. 332 (1994). In ACF Industries, the United States Supreme Court interpreted the Railroad Revitalization and Regulatory Reform Act (4 — R Act) .17 The Supreme Court held that property tax exemptions for non-railroad property were not prohibited by the provision in the 4-R Act comparable to 49 U.S.C. § 40116(d).18

¶ 88. Like American Airlines v. County of San Mateo, the ACF Industries case is clearly distinguishable from the instant case because it deals with discrimination between types of commercial properties, *248not with discrimination within a single type of commercial property based on how much business a particular company does in the state. ACF Industries is thus no help in the instant case to determine whether 49 U.S.C. § 40116 constitutes an "unmistakably clear" signal by Congress of approval for a discriminatory tax exemption in the present case for "home air carrier companies" but not other air carrier companies.

¶ 89. Quite simply, the language of 49 U.S.C. § 40116 and the case law interpreting § 40116 do not support the proposition that Congress has authorized with "unmistakable clarity" property tax exemptions that discriminate on the basis of the amount of business an air carrier company does within the taxing state. The majority opinion fails to build a persuasive case.

¶ 90. The inquiry about Congress's "unmistakably clear" statement, it seems to me, ought to end here. As the United States Supreme Court explained in New England Power Co. v. New Hampshire, 455 U.S. 331 (1982), Congress's intent to exempt certain types of state statutes from Commerce Clause analysis must be expressly stated.19

¶ 91. Courts, including the United States Supreme Court, have not, however, always taken the "expressly stated" language literally and in some cases have considered a statute's purpose and history in determining whether there is unmistakably clear Congressional authorization.201 therefore turn to the statutory and legislative history.

*249¶ 92. I conclude that the statutory and legislative history and the purpose support the conclusion that 49 U.S.C. § 40116 does not authorize states to discriminate between air carrier companies based on whether they have a hub in the state. While the statutory and legislative history does not evince an intent to prohibit such statutes, it also does not authorize them with unmistakable clarity, which is required to foreclose Commerce Clause scrutiny.

¶ 93. The predecessor to 49 U.S.C. § 40116 was first adopted in 1973. The 1973 version of the statute included the predecessors to § 40116(b) and (e).21 The predecessor to § 40116(d), the section prohibiting certain practices based on their effect on interstate commerce, was enacted in 1982.22

¶ 94. The 1973 statute was enacted in response to Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 716-17 (1972), in which the United States Supreme Court held that a tax or fee on air travelers was not a violation of the Commerce Clause as long as the charges were reasonable.23 The Senate report on the bill indicated that Congress was concerned with the "chaos which local taxation brings on the national air transportation sys*250tem."24 Thus, Congress sought to prohibit state and local governments from collecting head taxes on air carrier companies.

¶ 95. Nothing in the limited legislative history-regarding the 1982 amendments indicates that Congress intended to authorize discrimination among air carrier companies based on the ¿mount of business a company does within a state.

¶ 96. Courts look to the legislative history of the 4-R Act to construe 49 U.S.C. § 40116.25 The 4-R Act was passed in 1975, but similar legislation had been under consideration since at least 1961. However, like the 1982 amendments to the predecessor to 49 U.S.C. § 40116, nothing in the voluminous reports on the subject in 1961, 1969, or 1975 indicates that Congress intended to authorize discrimination among railroad companies based on the amount of business a railroad company does within a state.26

¶ 97. The United States Supreme Court explained the thrust of the legislative history on the 4-R Act in Western Air Lines, Inc. v. Board of Equalization of South Dakota, 480 U.S. 123, 131 (1987). The purpose of the 4-R Act (and, therefore, 49 U.S.C. § 40116) was to insulate railroads from discrimination by states based on the fact that a railroad was an out-of-state business:

The legislative history of the antidiscrimination provision in the 4-R Act demonstrates Congress' awareness that interstate carriers "are easy prey for State and local tax assessors" in that they are "nonvoting, often *251nonresident, targets for local taxation," who cannot easily remove themselves from the locality.27

It seems inconceivable that a statute intended to circumscribe interstate discrimination would also authorize (without so stating with "unmistakable clarity") tax exemptions that discriminate based on the amount of business an air carrier company does within the taxing state.

¶ 98. The majority opinion struggles mightily in 17 paragraphs, using intricate labyrinthine interpretive methods, to interpret 49 U.S.C. § 40116 as "unmistakably clear" in granting states authority to implement a tax discriminating among air carrier companies based on whether the air carrier company has a "hub" (as defined in Wis. Stat. § 70.11) in the state. The majority opinion essentially adopts the defendant's28 argument that because Congress permitted property taxes and did not expressly prohibit property tax exemptions, exemptions such as the Wisconsin hub exemption are authorized. The majority's interpretive tangle does not rise to the level of "explicit" Congressional authorization or an "unmistakably clear" authorization of discriminatory tax exemptions such as the hub exemption.

¶ 99. Based on the text, the case law, and the statutory and legislative history, I conclude that, in adopting 49 U.S.C. § 40116, Congress did not, with *252unmistakable clarity, authorize the states to implement a tax and tax exemption that discriminate among air carrier companies based on the amount of business they do in a state. As a result, the hub exemption in Wis. Stat. § 70.11(42) must be scrutinized to determine whether it interferes with interstate commerce contrary to the implied limitations of the Commerce Clause.

I — I I — I

¶ 100. The negative Commerce Clause jurisprudence has been described as a "tangled underbrush" and a "quagmire."29 Nevertheless, several basic principles for analyzing a statute under the negative Commerce Clause can be determined from the case law.

¶ 101. A state statute that directly discriminates against interstate commerce, or has the direct effect of favoring in-state business, is almost always invalidated without further inquiry. When the effect on interstate commerce is indirect, it must be determined (1) whether there is a legitimate state interest in the statute, and (2) whether the benefits to that interest outweigh the burden on interstate commerce.

¶ 102. In Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 578-79 (1986), the United States Supreme Court outlined how it scrutinizes a statute under the implied limitations of the Commerce Clause as follows:

This Court has adopted what amounts to a two-tiered approach to analyzing state economic regulation under the Commerce Clause. When a state statute directly regulates or discriminates against interstate com *253merce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry. When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, we have examined whether the State's interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits. We have also recognized that there is no clear line separating the category of state regulation that is virtually per se invalid under the Commerce Clause, and the category subject to the Pike v. Bruce Church[, 397 U.S. 137, 142 (1970)] balancing approach. In either situation the critical consideration is the overall effect of the statute on both local and interstate activity.30

¶ 103. A statute that clearly discriminates against interstate commerce, either on its face or in direct effect, violates the implied limitations of the Commerce Clause "unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism."31 The Supreme Court has further observed that when a "state statute amounts to simple economic protectionism, a 'virtually per se rule of invalidity' has *254applied."32 The Pike balancing test is not applied to a facially or directly discriminatory statute.33

¶ 104. In state taxation cases, the U.S. Supreme Court has generally applied an additional, more specific test. Under the test established in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), a state tax is permissible under the implied limitations of the Commerce Clause if (1) there is a substantial nexus between the taxed activity and the taxing State; (2) the tax is fairly apportioned; (3) the tax does not discriminate against interstate commerce; and (4) the tax is fairly related to the services provided by the State.34 The third element — the tax does not discriminate against interstate commerce, the test in general negative Commerce Clause jurisprudence — is important in the instant case.35 The Supreme Court has interpreted the Complete Auto test as stating that " 'discrimination' simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter."36

¶ 105. A review of the cases applying the Complete Auto test suggests that a facially or directly discriminatory state tax will be invalidated just as would any other facially or directly discriminatory legislation.

*255¶ 106. In Boston Stock Exchange v. State Tax Commission, 429 U.S. 318 (1977), six stock exchanges located outside of New York asserted a negative Commerce Clause challenge to a New York state statute that taxed securities transactions involving out-of-state sales more heavily than those involving in-state sales.37

¶ 107. The Supreme Court invalidated the application of a higher tax on out-of-state sales.38 In invalidating the tax, the Supreme Court considered the history of the New York tax statute and determined that the statute was enacted for economic protection, that is, to help the New York Stock Exchange and encourage it to remain in New York.39 The Supreme Court observed that the tax was invalid because the state was using its taxing power as a means of forcing more business into the state:

[T]he State is using its power to tax an in-state operation as a means of requiring other business operations to be performed in the home State. As a consequence, the flow of securities sales is diverted from the most economically efficient channels and directed to New York. This diversion of interstate commerce and diminution of free competition in securities sales are wholly inconsistent with the free trade purpose of the Commerce Clause.40

*256¶ 108. Thus, because the tax was directly discriminatory against out-of-state business, it violated the implied limitations of the Commerce Clause.

¶ 109. This outcome is unsurprising. As early as 1958, the Supreme Court observed in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457 (1959), that a state may not "impose a tax which *257discriminates against interstate commerce ... by providing a direct commercial advantage to local business ... ."41 The taxes in most of the cases in which the Supreme Court has upheld a state tax against negative Commerce Clause challenges are not directly discriminatory.42

¶ 110. Applying the case law to the instant case, I conclude that the tax is facially discriminatory. Air carrier companies pay the ad valorem tax only if they do *258not do enough business in Wisconsin. The hub exemption in Wis. Stat. § 70.11(42) applies only to businesses that the legislature is satisfied do "enough" business in the state.

¶ 111. The tax, therefore, is invalid as directly discriminatory against interstate commerce. The defendants have not shown that the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.43 Indeed, as the majority opinion explains, the purpose of the exemption (and the discrimination) is to protect jobs, encourage the development of additional air transportation facilities in Wisconsin, and preserve the state's competitiveness in attracting and retaining business.44

¶ 112. Just like the taxes invalidated by the United States Supreme Court in Boston Stock Exchange and Northwest States Portland Cement and invalidated by this court in Burlington Northern, Inc. v. City of Superior, 131 Wis. 2d 564, 388 N.W.2d 916 (1986), the tax in the instant case discriminates against interstate commerce by providing a direct commercial advantage to companies that do enough business in the state. Only if an air carrier company does enough business in the state (as defined in § 72.11(42)) does it get the benefit of not paying the ad valorem tax. Thus, the tax and exemption together make up a tax that discriminates against interstate commerce by providing a tax advantage to in-state businesses.45

¶ 113. Because the tax and exemption at issue in the instant case directly discriminate against out-of-state air carrier companies based on the amount of *259business an air carrier does in the state, and because the tax system does not support a non-discriminatory state interest, I conclude that the tax and exemption, taken together, are unconstitutional as a violation of the implied limitations of the Commerce Clause.

t — ( HH

¶ 114. Having concluded that the hub and headquarters tax exemptions are unconstitutional, I must now consider the remedy.

¶ 115. Northwest, which doesn't want to pay its taxes, would like this court to strike down the entire ad valorem tax.46 It therefore contends that the exemption is not severable from the rest of the tax statute. It argues that striking down the exemption instead of the entire statute would create a tax contrary to the legislative intent,47 which was, according to Northwest, to exempt air carrier companies from taxation.

¶ 116. I do not agree. The proper remedy in the instant case is to invalidate the hub exemption in Wis. Stat. § 70.11(42). Under Wis. Stat. § 990.001(11), the general rule is that the invalidity of a statutory provision "shall not affect other provisions or applications which can be given effect without the invalid provision or application." The rule of severability applies unless *260severability "would produce a result inconsistent with the manifest intent of the legislature."48

¶ 117. Northwest's position is belied by the history of the ad valorem tax. The exemption was enacted in 2001.49 The ad valorem tax, on the other hand, has existed since 1933.50 The ad valorem tax statute itself was not changed in any relevant manner when the exemption was enacted. Clearly, the tax can exist independent of the exemption.

¶ 118. Striking down the exemption would not defeat the intent of the legislature. The statute was not intended to exempt air carrier companies from taxation. As I have already explained, the intent was to exempt air carrier companies who do a lot of business in the state from taxation, thus creating an incentive for air carrier companies to do more business in Wisconsin.

¶ 119. Striking down the tax altogether would not support the legislative purpose of charging a lower tax to air carrier companies who do more business in the state. The result is that striking down the entire statute would no more effectuate the intent of the legislature than striking down just the exemption.

¶ 120. I therefore agree with the circuit court that there is no reason to conclude that the legislature would not have enacted an ad valorem tax system for air carrier companies without an exemption for Wisconsin hub facilities. Northwest has not shown that the hub facility is so integral to the ad valorem tax system that it may not be severed. I conclude, as did the circuit court, that the proper remedy is to strike down just the exemption portion of the ad valorem tax.

*261¶ 121. For the reasons set forth, I dissent.

¶ 122. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

McLeod v. J.E. Dilworth Co., 322 U.S. 327, 330 (1944).

Current through June 16, 2006.

All references to the Wisconsin Statutes are to the 2003-04 version.

Courts and commentators have variously described the type of Commerce Clause jurisprudence at issue in this case as the "dormant" Commerce Clause, the "negative implications" of the Commerce Clause, and the "implied limitations" of the Commerce Clause. These terms are interchangeable.

Maine v. Taylor, 477 U.S. 131, 139 (1986) (citing S.-Cent Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91 (1984)) ("[The United States Supreme Court] has exempted state statutes from the implied limitations of the Clause only when the congressional direction to do so has been 'unmistakably clear.'"); see also Wyoming v. Oklahoma, 502 U.S. 437, 458 (1992) ("Congress must manifest its unambiguous intent before a federal statute will be read to permit or to approve such a violation of the Commerce Clause ...."); S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91 (1984) ("There is no talismanic significance to the phrase 'expressly stated,' however; it merely states one way of meeting the requirement that for a state regulation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear. The requirement that Congress affirmatively contemplate otherwise invalid state legislation is mandated by the policies underlying dormant Commerce Clause doctrine.").

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 154 (1982).

New England Power Co. v. New Hampshire, 455 U.S. 331, 343 (1982) (citations omitted) (quoting Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 427, 431 (1946) and United States v. Pub. Util. Comm'n of Cal., 345 U.S. 295, 319 (1953) (Jackson, J., concurring)).

Majority op., ¶ 31 (citing 1 Laurence H. Tribe, American Constitutional Law 1039 (3d ed. 2000)).

An "air carrier company" is "any person engaged in the business of transportation in aircraft of persons or property for *241hire on regularly scheduled flights." Wis. Stat. § 70.11(42)(a)l. Aircraft is defined as "a completely equipped operating unit, including spare flight equipment, used as a means of conveyance in air commerce." Wis. Stat. § 76.02(1).

Wis. Stat. § 70.11(42)(a)2.

49 U.S.C. § 40116(c) permits a state to "collect a tax on or related to a flight of a commercial aircraft or an activity or service on the aircraft only if the aircraft takes off or lands in the State ...."

49 U.S.C. § 40117 deals with "passenger facility fees," and allows for certain types of fees.

49 U.S.C. § 40116(d)(1) contains the following definitions relevant to the instant case:

(A) "air carrier transportation property" means property ... that an air carrier providing air transportation owns or uses.
(D) "commercial and industrial property" means property (except transportation property and land used primarily for agriculture or timber growing) devoted to a commercial or industrial use and subject to a property tax levy.

Majority op., ¶ 37.

For the purposes of the instant case, 49 U.S.C. § 1513, the predecessor to § 40116, was not materially different.

Nw. Airlines, Inc. v. County of Kent, Michigan, 510 U.S. 355, 365-66 (1994) (citing Wardair Canada Inc. v. Fla. Dep't of Revenue, 477 U.S. 1, 15-16 (1986) (Burger, C.J., concurring in part and concurring in judgment)).

In County of Kent, 510 U.S. at 365-66, the Supreme Court explained the savings clause in the predecessor to § 40116 as follows:

But § 1513(a) does not stand alone. That subsection's prohibition is immediately modified by § 1513(b)'s permission. Sections 1513(a) and (b) together instruct that airport user fees are permissible only if, and to the extent that, they fall •within § 1513(b)'s saving clause, which removes from § 1513(a)'s ban ''reasonable rental charges, landing fees, and other service charges from aircraft operators for the use of airport facilities."

United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 337 (1st Cir. 2003).

As the majority observes, the 4-R Act is the model for 49 U.S.C. § 40116(d), and courts rely on cases interpreting the 4-R Act to interpret § 40116(d). Majority op., ¶ 45 n.17.

Dep't of Revenue of Or. v. ACF Indus., 510 U.S. 332, 335 (1994).

The majority opinion contends that the ACF Industries Court held that "principles of federalism" made it necessary to allow the tax exemptions because "the power to grant tax exemptions is among the traditional powers of the states and because states must be allowed to grant 'tax exemptions to encourage industrial development.'" Majority op., ¶ 46 (quoting ACF Indus., 510 U.S. at 345).

What the Supreme Court actually said is that there is nothing in the legislative history to support the conclusion that "Congress had any particular concern with property tax exemptions, or that Congress intended to prohibit exemptions in" the relevant provision of the 4-R Act. ACF Indus., 510 U.S. at 345. In other words, the 4-R Act (and thus 49 U.S.C. § 40116) was not intended to prohibit property tax exemptions. But, the issue in the present case is not whether § 40116 prohibits tax exemptions. Rather, the issue is whether Congress authorized, with unmistakable clarity, air carrier company tax exemptions that discriminate against interstate commerce, thus removing those exemptions from Commerce Clause scrutiny.

New England Power, 455 U.S. at 343.

Maine v. Taylor, 477 U.S. 131, 140 (1986) (considering history of federal statute to determine whether Congress foreclosed Commerce Clause review with unmistakable clarity regarding state wildlife legislation prohibiting importation of live baitfish); United Egg Producers v. Dep't of Agric. of P.R., 77 *249F.3d 567, 571 (1st Cir. 1996) (same; egg labeling requirements for eggs imported to Puerto Rico); Goodman Oil Co. v. Idaho State Tax Comm'n, 28 P3d 996, 1000-01 (Idaho 2001) (same; Indian tribe exemption from state excise tax).

The majority ought to use federal methods of statutory interpretation of a federal statute. It ought not impose this state's rules of statutory interpretation on a federal statute. See majority op., ¶ 36.

See P.L. 93-44 (1973).

See P.L. 97-248, § 532 (1982).

S. Rep. No. 93-12, at 17 (1973).

Id.; see also 119 Cong. Rec. H11, 13897 (daily ed. May 2, 1973) (statement of Rep. Clawson).

See majority op., ¶ 45 n.17.

See S. Rep. No. 87-445, at 445-90 (1961); S. Rep. No. 91-630, at 1-16 (1969); H.R. Rep. No. 94-725 (1975).

W. Air Lines, Inc. v. Bd. of Equalization of S.D., 480 U.S. 123, 131 (1987) (quoting S. Rep. No. 91-630, at 3 (1969)).

The defendant in the instant case is the Department of Revenue. Midwest Airlines, Inc. intervened as a defendant to protect its interest in maintaining the hub exemption. Air Wisconsin, the other air carrier that benefits from the hub exemption, did not intervene. Except where necessary to distinguish between the parties, in this opinion "defendant" refers to both the Department of Revenue and Midwest Airlines.

Nw. States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457, 458 (1959), overruled by statute on other grounds as stated in Silent Hoist & Crane Co. v. Dir., Div. of Taxation, 494 A.2d 775, 779 n.1 (N.J. 1985).

Citing City of Philadelphia v. New Jersey, 437 U.S. 617 (1978); Shafer v. Farmers' Grain Co., 268 U.S. 189 (1925); Edgar v. MITE Corp., 457 U.S. 624, 640-643 (1982) (plurality opinion); Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 440-441 (1978).

The Pike balancing test, referred to in Brown-Forman Distillers, states that when a "statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike, 397 U.S at 142.

Wyoming v. Oklahoma, 502 U.S. 437, 454 (1992) (citing Maine v. Taylor, 477 U.S. 131 (1986)).

Wyoming, 502 U.S. at 454 (quoting City of Philadelphia, 437 U.S. at 624.

See Pike, 397 U.S. at 142.

Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977); Dep't of Revenue, State of Wash. v. Ass'n of Wash. Stevedoring Cos., 435 U.S. 734, 750 (1978).

The other three elements of the Complete Auto test appear to be additional requirements for state taxes.

Or. Waste Sys., Inc. v. Dep't of Envtl. Quality of Or., 511 U.S. 93, 99 (1994).

Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 319-20 (1977).

The taxes at issue in Boston Stock Exchange all involved a "taxable event" in New York. Id., 321-23.

Boston Stock Exch., 429 U.S. at 328.

Id. at 323-28.

Id. at 336 (quoted source omitted).

The Court also observed in Boston Stock Exchange, 429 U.S. at 336-37, that a taxation system could still be used to encour*256age business growth and to compete with businesses from other states, as long as the taxation system does not discriminate:

Our decision today does not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry. Nor do we hold that a State may not compete with other States for a share of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State.

The tax exemption also may have a coercive effect to force air carriers to do more business in Wisconsin. See Westinghouse Elec. Corp. v. Tully, 466 U.S. 388, 406 (1984) (a New York tax credit that increased as the amount of exports from New York increased violated the commerce clause because it discriminated against export shipping from other states).

For a discussion of how the U.S. Supreme Court has gone about distinguishing between state tax regulations that imper-missibly discriminate and those regulations that are held to be permissible "location incentive" tax regulations, see Walter Hellerstein & Dan T. Coenen, Commerce Clause Restraints on State Business Development Incentives, 81 Cornell L. Rev. 789 (1996).

Hellerstein and Coenen further conclude that the Supreme Court has given little guidance as to how a state tax scheme can encourage growth and development within the state without offending the Commerce Clause. Id. at 795-96. They explain the distinction between tax schemes that violate the Commerce Clause and those that do not and the distinction between permissible and impermissible property tax incentives. The instant case is clearly more like the impermissible examples offered by Hellerstein and Coenen.

Nw. States Portland Cement, 358 U.S. at 458; see also Am. Trucking Ass'ns, Inc. v. Schneiner, 483 U.S. 266 (1987) (invalidating lump sum annual tax on operating trucks in Pennsylvania as directly discriminatory, and therefore invalid, because it imposed disproportionate share of costs on out-of-state businesses); Maryland v. Louisiana, 451 U.S. 725 (1981) (Louisiana's "first-use" tax, imposing tax on imported but not in-state natural gas, invalid discrimination against interstate commerce); Burlington N., Inc. v. City of Superior, 131 Wis. 2d 564, 575-76, 388 N.W.2d 916 (1986) (tax exemption invalid where "only real effect of the exemption ... is to enhance or encourage the Wisconsin metalliferous mining industry at the expense of out-of-state miners").

See, e.g., Okla. Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175 (1995) (uniform state sales tax valid when applied to tickets for interstate bus travel); Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60 (1993) (sales tax on cargo containers in state valid when applied to shipper with only international business); Quill Corp. v. North Dakota, 504 U.S. 298 (1992) (uniform use tax valid when applied to mail order company with no physical presence in state); Dep't of Revenue, State of Wash. v. Ass'n of Wash. Stevedoring Cos., 435 U.S. 734 (1978) (equally apportioned tax on value of goods loaded and unloaded in state valid when applied to out-of-state corporation). But see Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977) (Mississippi tax on transportation of out-of-state goods into the state, the "privilege of doing business" tax, valid under principle that interstate commerce must "pay its own way").

See Wyoming v. Oklahoma, 502 U.S. 437, 454 (1992).

Majority op., ¶¶ 1, 18-22.

See Nw. States Portland Cement, 358 U.S. at 457.

The Department of Revenue, of course, opposes this result. Unsurprisingly, Midwest Airlines does not. Midwest has not been paying taxes because of the exemption. If the exemption were invalidated, Midwest (as well as Air Wisconsin, which did not intervene in the instant case) would have to start paying.

See Burlington N., Inc. v. Superior, 131 Wis. 2d 564, 580-84, 388 N.W.2d 916 (1986).

Wis. Stat. § 990.001(11).

2001 Wis. Act 16, § 2109; majority op., ¶ 3.

See § 3, ch. 349, Laws of 1933.