on denial of petition for rehearing.
With the Court’s May 24,1988, opinion in its hands, the Tax Commission has asked that a rehearing be granted in order that on reconsideration the Court would modify its opinion and hold that the Idaho Income Tax Act, insofar as it imposes a tax on the income of train crew members working on trains while traveling through Idaho, does not violate the due process clause of the fourteenth amendment or the commerce clause (art. I, § 8, cl. 3) of the United States Constitution; and, if not, that in any case the Tax Commission requests that the Court clarify its original opinion and articulate the standard to be employed by the commission in administering the tax law when questions of nexus arise.
The Tax Commission’s brief asserts that the rehearing is requested because the opinion of the Court, filed May 25, 1988, is the first ruling by any court of any jurisdiction to hold that a state’s attempt to tax a nonresident individual performing labor within that state violates the due process clause of the fourteenth amendment and the commerce clause (art. I, § 8, cl. 3) of the United States Constitution.
The brief points to four areas in which it asserts that the Court has gone astray:
First, the opinion relies upon nexus concepts dealing with fictional entities, i.e., corporations, to achieve a tortured, and completely untenable result which provides no reasoning or guidance to either taxpayers or the Tax Commission.
Second, the opinion fails to consider Idaho Code § 63-3030 which provides that no tax shall be levied on nonresidents until the total Idaho source income exceeds specified minimum levels. Consideration of this “de minimis” statute would eliminate this Court’s fear of “sustaining taxes on the income generated by any person who crosses Idaho by any means without stoping or transacting business here, but who is being compensated while in transit.” 1988 Opinion No. 39, at 14.
Third, the opinion misconstrues the requirement of “economic contact” necessary to sustain nexus under the due process clause for a nonresident individual based on a state’s provision of the “fruits of civilization.” Idaho has provided the protections and business climate which are necessary for these employees to receive the substantial benefit of employment within the state.
Fourth, the commerce clause cannot be violated on the present facts because there are no “goods in transit” or “interstate sales.” The tax at issue is not levied on “goods in transit” or “interstate sales,” but rather on the income generated from the labor of the train crews while in Idaho.
Fifteen pages of discussion appear to sustain the propositions so advanced. In my view the Court is remiss in not affording the Tax Commission the opportunity to further pursue its contentions at a rehearing, and I have voted to do so.