dissenting:
I disagree with the interpretation given by the majority to 49 U.S.C. § 1513: Paragraph (a) is the prohibition provision. If the Arizona transaction privilege tax is not prohibited by paragraph (a), there is no need to decide if the tax comes within the exceptions in paragraph (b).
A reading of the Senate Commerce Committee Report 93-12 indicates very clearly that the legislation was intended to put an end to state-imposed passenger “head taxes” and their analogues. There is no indication that the legislation was intended to prohibit a transaction business tax upon intrastate air carriers.
“Air commerce” and “air transportation” are technical terms defined in Title 49 of the United States Code. These definitions apply to these terms as they are used in 49 U.S.C. § 1513.
In paragraph (a) of 49 U.S.C. § 1513, there appears the phrase “... or on the gross receipts derived therefrom.” In my opinion, this relates only to the immediately preceding words “... the sale of air transportation.” It does not relate to earlier language dealing with “air commerce.”
“Air transportation,” as pointed out in the majority opinion, refers to interstate and foreign, but not intrastate, air carriage whereas “air commerce” includes intrastate air carriage because it relates to operation of aircraft along federal airways within a state.
The question thus narrows to whether the Arizona transaction privilege tax is a “tax, fee, head charge, or other charge [direct or indirect], on persons traveling in air commerce or on the carriage of persons traveling in air commerce.” In my opinion, it is not included in this category.
Paragraph (b) of 49 U.S.C. § 1513 sets forth a nonexclusive list of exceptions wherein a state may levy a tax in this area. The existence of these exceptions provides a further indication of congressional intent to allow Arizona to levy the transaction privilege tax upon Cochise Airlines. I would affirm the judgment.