on denial of petition for rehearing.
A state income tax is a tax imposed on income earned from labor performed within a state. All states under all prior federal and state decisions, have the power to tax income earned in the state.
If through the use of legal constructs and through use of the word “nexus,” the physical phenomenon of an engineer pushing and pulling on a train’s throttle while the train is traveling through Idaho can truly be transformed into performance of labor in Washington or Montana, then what the majority has written is a correct legal analysis.
If, on the other hand, performance of work in Idaho is performance of work in Idaho, then I must differ with the legal analysis.
The excellent, cogent and thoughtful brief on Petition for Rehearing by the Attorney General, which I attach hereto as Appendix A, may give the reader an opportunity to better evaluate which position is correct.
At the moment, the following forty states have laws providing for the taxation of individual earned income:
*966Alabama
California
Georgia
Illinois
Kansas
Maine
Michigan
Missouri
New Jersey
North Carolina
Oklahoma
Rhode Island
Vermont
Wisconsin
Arizona
Colorado
Hawaii
Indiana
Kentucky
Maryland
Minnesota
Montana
New Mexico
North Dakota
Oregon
South Carolina Virginia
Arkansas
Delaware
Idaho
Iowa
Louisiana
Massachusetts
Mississippi
Nebraska
New York
Ohio
Pennsylvania
Utah
West Virginia
All have a statute similar to Idaho Code § 63-3024 imposing a tax on non-resident labor within a state. Not one single case holds that any of those forty states lack the power to tax non-residents who pursue their occupations while transiting the state.
The majority appears to have been impressed by an argument presented by the trainmen that to tax them, would mean that the next step might be a tax on the wages of airline pilots or airline passengers such as bankers who perform work while transiting the state of Idaho on a transcontinental flight. To the majority such would appear to be a conceptually unwarranted exercise of the taxing power. However, the fact is, that the states do have the power to so tax, but do not exercise it due to the onerous bookkeeping expense which would be involved both for the state and the taxpayer and, thus, they handle that problem through their “de minimis” statutes such as I.C. § 63-3030. No case has ever held that that banker or airline pilot is not subject to taxation and there is no good reason why, when computer processing makes such calculations economical, the airline pilot earning $100,000 a year should escape taxation on his income while the ground crews working to make the flight possible are subject to income taxation.
I am most distressed by what I believe is the majority’s incorrect grounding of its opinion on the Interstate Commerce Clause. Just as the interstate commerce clause is not implicated as an “undue burden on the airline” by taxing the wages of a man who lives near St. Anthony, Idaho, who works on the air traffic control radar on Sawtelle peak, neither would the commerce clause be implicated by an income tax requiring the airline pilot who flies for only six minutes of a transcontinental flight in the air space of the District of Columbia to pay a fair proportion of income tax to the states he flies over in route to thirty-five minutes in California air space while landing in San Francisco.
One final example demonstrates the reason why no other court has ever misconstrued the commerce clause to limit a state’s power to tax in cases of this nature:
(1) A.B.N. engineer resident on the Idaho side of the border who commutes to Spokane to board his train for the trip back across Idaho to Montana, pays his Idaho income tax with the majority agreeing his tax payment does not “burden commerce.”
(2) Why then, would payment of the same proportionate tax by an engineer resident in Spokane suddenly constitute an unconstitutional burden?
The opinion on denial by Justice Johnson contains the following sentence.
“Neither B.N. nor the train crews transacted any business in Idaho during these trips.”
I suggest that the train crew members did in fact transact their business of operating the trains in Idaho and, therein, the majority recognizes the proper test, but regrettably fails to follow where its logic leads. When a person is physically present performing his work in Idaho, Idaho possesses the total, ultimate and absolute nexus.
The statement that “[njeither B.N. nor the train crews transacted any business in Idaho during these trips” displays the flawed analysis in two other respects.
(1) In determining income tax incidence upon an individual, the nature of the employer’s business is usually of little relevance and serves only to confuse the majority analysis in this instance.
(2) Secondly, it seems to me that business of the Burlington railroad is that of transportation. “Transportation” is a derivative of the Latin word “trans” (across) and the French word “portare” (to carry). It would seem to me that B.N.’s business of carrying goods and people across Idaho is business in Idaho rather than in Wash*967mgton or Montana. Further, as to the source of the fruits of civilization which make the enterprise possible, it seems to me that while the train crosses Idaho, it is the terra firma of Idaho, the section hands of Idaho, the traffic signal maintenance crews of Idaho, and the police and fire protection provided by Idaho people which contribute more to the transportation enterprise than do the similar support forces many miles away in other states.
APPENDIX A TO OPINION OF JUSTICE HUNTLEY ATTORNEY GENERAL BRIEF ON PETITION FOR REHEARING
Rehearing is requested in this case because the Opinion of this 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.
Initially, 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 stopping 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.
I.
THE COURT RELIED UPON NEXUS CONCEPTS DEALING WITH FICTIONAL ENTITIES TO ACHIEVE A TORTURED AND COMPLETELY UNTENABLE RESULT WHICH PROVIDES NO REASONING OR GUIDANCE TO EITHER TAXPAYERS OR THE TAX COMMISSION.
The United States Supreme Court has held that a state may impose a tax on incomes earned by nonresident individuals from their occupations carried on within the state. Shaffer v. Carter, 252 U.S. 37, 52, 40 S.Ct. 221, 225, 64 L.Ed. 445 (1920). In upholding the income tax on a nonresident individual, the court in Shaffer reasoned that the states have the general duty of protecting and preserving “all persons, property, and business transactions within their borders ...” Id. 252 U.S. at 50, 40 S.Ct. at 224. As a consequence of these protections, the state has a right to demand a contribution in the form of taxes from those who profit from the protections provided by the state. Id. In reinforcing this principle, the court stated:
That the state, from whose laws property and business and industry derive the protection and security without which production and gainful occupation would be impossible, is debarred from exacting a share of those gains in the form of income taxes for the support of the government, is a provision so wholly inconsistent with fundamental principles as to be refuted by its mere statement.
Id.
The United States Supreme Court has also mandated “... that there be a sufficient nexus between the presence, property *968or activities of the nonresident and the state attempting to impose the tax in order to survive a challenge under the due process clause_____” 1988 Opinion No. 39, at 7. However, the Opinion in this case relies upon concepts pertaining to nexus announced in numerous United States Supreme Court decisions dealing with the fictional entity of corporations (in particular, foreign corporations operating in multiple states) in an attempt to determine whether a nonresident individual performing labor within Idaho has a sufficient connection with Idaho to be subject to its income tax. In announcing the result of this case, the Court fails to formulate a general test applicable to future cases or to set forth its reasoning behind the result. Perhaps the reasoning is omitted because it is based on the structural defect of shoehorning corporate nexus principles into individual nexus principles.
The distinctions between a corporation and an individual with regard to the concept of nexus are paramount. A corporation, by definition, is a fictional entity which can act only through its officers or agents. Further, a corporation can have a “presence” in more than one state at any given moment, i.e., a multi-state corporation. An individual, on the other hand, can be in only one place at one time. When an individual is working in state A, he cannot be working simultaneously in state B. Thus, an individual performing labor or personal services within a state, receiving income thereby, has derived that income from sources within said state. Gee v. West, 90 Idaho 173, 409 P.2d 116 (1965). This Court so stated at page 5 of its Opinion: “where compensation for personal services is involved, the source of income is the location where the services are performed.”
Therefore, the Court erred in looking to principles of nexus dealing with corporations, particularly multi-state corporations, to determine whether or not an individual with complete physical presence in Idaho has a sufficient “presence” in Idaho to support a finding of nexus.
II.
THE COURT’S FEAR OF THE STATE TAXING “ANY PERSON WHO CROSSES IDAHO BY ANY MEANS WITHOUT STOPPING OR TRANSACTING BUSINESS HERE, BUT WHO IS BEING COMPENSATED WHILE IN TRANSIT” IS WITHOUT FOUNDATION.
Idaho Code § 63-3030 sets forth the minimum amount of income a nonresident individual must earn from Idaho sources before an income tax can be levied, i.e., a “de minimis” provision. Idaho Code § 63-3030 has been part of the income tax act since its enactment in 1959, and has been periodically amended to increase the minimum income that a taxpayer must earn prior to being subject to a filing obligation. In addition, House Bill 655 of the 1988 Legislature enacting Idaho Code § 63-3023B sets forth further limitations specifically aimed at transportation employees.
As enacted in 1959, the de minimis provision provided that a nonresident individual could earn income from Idaho sources of up to $600 before a tax reporting obligation would occur. Currently, a nonresident single individual must have income from Idaho sources amounting to at least $3,300 before a tax reporting obligation occurs. A nonresident individual filing a joint return must earn at least $5,400 from Idaho sources before a tax reporting obligation occurs. Thus, a nonresident individual crossing Idaho and being compensated while in transit would not be subject to Idaho tax until his income from Idaho sources is substantial enough to exceed the statutory minimum.
De minimis provisions with regard to the Due Process Clause were specifically addressed in the case of Commonwealth, Dept. of Taxation v. B.J. McAdams, Inc., 227 Va. 548, 317 S.E.2d 788 (1984). There, the Supreme Court of Virginia stated that a “de minimis” provision was added to the taxation scheme “[i]n order to conform to the Due Process requirements of the Fourteenth Amendment to the Federal Constitution. ...” Id. 317 S.E.2d at 792.
*?What must be remembered is that the train crews in question are not “merely passing through Idaho” on a sporadic or inconsistent basis. Quite the opposite is true. The train crews are passing through Idaho on a regular and systematic basis. Depending upon whether a time or mileage apportionment factor is used, between 25% and 40% of the wages earned by the train crew members are being earned while they are in Idaho.
As an example of the presence necessary in Idaho to meet the current minimum filing requirements, if a train crew member (filing single) earned $60,000 a year, and a bare minimum 25% apportionment factor was used, the train crew member would be able to work continuously across Idaho for well over 2 months prior to incurring any Idaho tax liability. Using the same facts, a train crew member filing jointly could work continuously across Idaho for over a third of the year prior to incurring any Idaho tax liability.
A second example to be considered is the distinction between the engineer operating a through train that does not stop, as opposed to a second engineer operating a train that makes one momentary stop, but who never moves from his seat and then continues on his journey through the state. The Opinion of this Court implies that one stop is sufficient to tax the second engineer, yet the first goes tax free. Because the Court failed to set forth its reasoning behind the result, the Tax Commission can only guess as to how this area of the law should be administered in the future.
During reargument, a question was raised concerning a banker riding on a train and working while crossing Idaho. The Court inquired, ignoring the de minim-is statutes, how often the banker could work while traveling through Idaho before incurring an Idaho tax liability. Admittedly, an incomplete response was given.
To properly answer the question, it must be addressed both statutorily and in the due process context. Statutorily, as discussed earlier in this brief, any individual performing labor or personal services within the state has Idaho source income which is subject to Idaho income tax. Gee v. West, supra. Therefore, any wages received for labor performed within Idaho would be subject to income tax under the taxing statutes, absent the de minimis provision. This response was given during reargument.
However, the de minimis provisions cannot be ignored in the due process context because that is what sets the floor to satisfy the minimum contacts necessary to support nexus. Without the de minimis provisions, a nonresident individual coming into Idaho to work for one day, thereby earning $100.00, would incur an Idaho income tax liability. Statutorily, it makes no difference if he digs a ditch or operates a through train. That individual has Idaho source income subject to Idaho’s income tax.
On the other hand, with the de minimis provisions, the nonresident individual would not be subject to tax until such time as he earned sufficient income to exceed the minimum filing requirements, thereby meeting the minimum contacts necessary to satisfy the nexus requirement of the Due Process Clause. Again, it makes no difference if the individual digs a ditch or operates a through train. Due process requirements are satisfied if the nonresident individual has earned income from Idaho sources which meet or exceed the de minimis statutory filing requirements.
III.
THE COURT HAS MISCONSTRUED THE REQUIREMENT OF “ECONOMIC ACTIVITY WITHIN IDAHO” NECESSARY TO SUSTAIN NEXUS UNDER THE DUE PROCESS CLAUSE.
Although the Court correctly held that Idaho is the source of the income of the train crew members while they are traveling through Idaho, the Court failed to recognize the contributions made by Idaho to the production of this income. In failing to recognize Idaho’s contributions, the Court erred in holding that:
the Idaho law imposing a tax on the income of these employees while they are *970traveling through Idaho violates the due process cause of the fourteenth amendment and the commerce clause (art. I § 8, cl. 3) of the United States Constitution.
1988 Opinion No. 39, at 2.
The United States Supreme Court has stated:
A state is free to pursue its own fiscal policies, unembarrassed by the Constitution, if by the practical operation of a tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society.
******
The simple but controlling question is whether the state has given anything for which it can ask return. [Emphasis added.]
Wisconsin v. J.C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249-50, 85 L.Ed. 267 (1940). The Court cited the above language in its Opinion as the beginning step in determining nexus. However, the Court then went on to cite numerous United States Supreme Court decisions dealing with multistate corporate income tax or corporate sales tax situations which are completely inapposite to the facts of the present case. Further, the Opinion completely ignores the numerous decisions cited by the Tax Commission (discussed below) which deal specifically with economic contacts sufficient to sustain nexus between a nonresident individual and a taxing state. Even so, every single case cited by the Court in its analysis of the nexus concept concluded that sufficient contacts did exist to satisfy due process requirements and to justify imposition of state taxes.
The Opinion of this Court states at page 13 that the wages of the train crew members “... are not attributable to any economic activity within Idaho, and that Idaho markets and commerce do not affect their income in any degree.” This statement is inconsistent with applicable case law.
In Lung v. O’Chesky, 94 N.M. 802, 617 P.2d 1317 (1980), New Mexico sought to tax residents of Texas who were employed on the federal enclave known as the White Sands Missile Range.’ The wages of the federal employees were in no way dependent upon New Mexico markets and commerce, nor were they attributable to any economic activity within New Mexico. Nevertheless, the Supreme Court of New Mexico held:
The power to tax does not rest on a measurable economic duty of the State towards its citizens, but on less tangible benefits, on the “fruits of civilization”. J.C. Penney Co., [311 U.S.] at 446, 61 S.Ct. at 250, quoting Compania de Tobacos v. Collector, 275 U.S. 87, 100, 48 S.Ct. 100, 105, 72 L.Ed. 177 (1927) (Holmes, J., dissenting). The opportunity to exercise “intelligence, skill, and labor while employed in the State of New Mexico” has been held to be sufficient benefit to support an income tax. Jackling v. State Tax Commission, 40 N.M. 241, 248, 58 P.2d 1167, 1171 (1936). Under this test, plaintiffs have a sufficient nexus with New Mexico to be taxed. [Emphasis added.]
Id. 617 P.2d at 1319. Clearly, the New Mexico Supreme Court held that the opportunity of employment within the state was sufficient, without regard to whether or not the employment was dependent upon New Mexico markets and commerce, or any economic activity within New Mexico.
In Sjong v. State, Dept. of Revenue, 622 P.2d 967 (Alaska 1981), the Supreme Court of Alaska also looked at the minimum connection of a nonresident individual sufficient to satisfy due process requirements. In Sjong, the court looked to indirect benefits of economic activity as well as direct benefits of economic activity within a state. The court looked to “business income generation” to determine:
that unlike the services rendered to an ordinary traveler, the services, benefits, and protections offered to Sjong are directly related to generating his income. ... the availability of emergency medical services, [and] repair facilities ... clearly benefits his business operations----
*971Id. at 970. The Sjong court cited the case of State of Alaska v. Petronia, 69 Wash.2d 460, 418 P.2d 755, 759 (1966), in support of its business income generation concept by quoting:
“We are satisfied that the benefits of employment afforded by this economic activity of the state of Alaska constituted minimum connections within the rule to avoid a denial of due process under the Fourteenth Amendment to the United States Constitution.” [Emphasis added.]
Id. at 971. This principle is completely opposite to the one stated by this Court in its reading of the Petronia case.
The economic activity in Petronia ran between the state and the employer of the defendants therein. In turn, the employer was able to offer the benefit of employment to the nonresident seamen. Thus, the Petronia court, in rejecting the defendants’ (employees’) argument that they had not received a benefit from the state, held:
[the argument] overlooks a most significant element considered in applying the test of benefits in determining minimum connections. Probably the most significant benefits in the eyes of these defendant seamen are the wages they contemplated receiving for their services during the course of the vessel’s voyage. The business productivity generated by Alaska was accountable for. the wages earned by the defendants when they were in Alaska waters. [Emphasis added.]
418 P.2d at 758.
Although the Court cited the above language in its Opinion at page 14, with regard to the “importance of the economic activity generated by the state” (1988 Opinion No. 39, at 13-14), the Court misconstrued the requirement of “economic contact” by failing to recognize that the employer providing the wages is sufficient to meet the nexus requirement of due process.
The Court’s Opinion also states at page 13:
It would be unfair to allow the state to impose a tax on the income of the train crews earned while they are merely passing through Idaho.
However, the train crew members are not “merely passing through Idaho”. This was clearly pointed out in the trial court’s memorandum opinion at page 25-26:
while operating the train in Idaho the plaintiffs [train crew members] are performing their duties carefully and diligently to preserve and protect their own safety and preserve and protect the safety and security of persons on or near the railroad track and to preserve and protect the extremely valuable equipment and cargo entrusted to their care.
The presence of the train crew members within Idaho is not incidental to the performance of the labor being compensated. The train crew members are being paid to use their skill, intelligence and labor to safely and timely negotiate the train and its contents from Washington, through Idaho, to its destination in Montana, and viceversa. This skill, intelligence and labor is not turned off upon reaching the Washington-Idaho border and then turned back on upon reaching the Idaho-Montana border.
While the crew members are working in Idaho they are receiving the benefits of Idaho’s organized society. As Justice Huntley points out in his dissent at page 24:
the trainmen are provided many benefits and protections by Idaho’s state and local governmental structures. It is these protections which provide the trainmen the opportunity to exercise their intelligence, skill and labor while performing work for their employer within Idaho. In addition, it is these same protections, i.e., the “fruits of civilization,” which make it possible for Burlington Northern to operate its trains in Idaho, thus giving rise to the employment of Burlington Northern employees.
A very real example of the protections provided by Idaho’s state and local governmental structures of which the train crew members benefit is the case of People v. Williams, 1 Idaho 85 (1866). On March 3, 1863, prior to statehood, the territory of Idaho was organized by Congress from *972four already existing territories, thus becoming a separate political community. Because the new territory was carved out of four existing territories, the usual practice of recognizing the laws of the former government until new laws could be adopted was not feasible. This left the new territory of Idaho with no criminal statutes until such could be enacted by the new government. The defendant, John Williams, was charged with committing the crime of highway robbery during the month of September, 1863, in the county of Boise, térritory of Idaho. The court held that because the crime, assuming the facts alleged in the indictment to be true, was committed after the laws of the former territory were extinguished, but prior to the time new criminal statutes could be enacted, that:
there was no statute punishing the offense charged in this indictment at the time it was alleged to have been committed, and that even if the facts alleged be true, no sentence could be pronounced.
Id. at 88. Therefore, prior to Idaho’s existence, and the protections which we now take for granted, a person could commit highway robbery, or any other crime, with impunity.
It is exactly these benefits and protections which allow the train crew members to work within Idaho in a secure manner. For if Burlington Northern were unable to operate its trains in Idaho, it would be unable to provide the jobs, and thus the wages, that the train crew members receive. It is this opportunity to be employed which has been held to constitute sufficient nexus for the state to tax the wages of a nonresident individual performing labor within the states borders. See, Sjong v. State Department of Revenue, supra; Lung v. O’Chesky, supra; State of Alaska v. Petronia, supra; Jackling v. State Tax Commission, 58 P.2d 1167 (N.M.1936).
IV.
AN INCOME TAX ON WAGES EARNED FROM IDAHO SOURCES BY NONRESIDENTS DOES NOT VIOLATE THE COMMERCE CLAUSE.
Although the Commerce Clause and Due Process Clause are often discussed interchangeably,
[t]he courts, however, have usually placed considerations of minimum contacts and sufficient nexus under the due process heading, while questions regarding the proper apportionment of income to the taxing state and the discriminatory impact of taxes are covered by the Commerce Clause. [Citations omitted.]
Sjong v. State, Department of Revenue, 622 P.2d at 973. The United States Supreme Court has held that:
net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same.
Northwestern States Portland Cement Company v. Minnesota, 358 U.S. 450, 452, 79 S.Ct. 357, 359, 3 L.Ed.2d 421, 424 (1959). What must be kept in mind is that corporations can only earn income by selling the services of its employees or selling goods. This is because the fictional corporate entity is not a physical being capable of having a presence in a specific location. Thus, any time a corporation transacts business in more than one state, and thereby is subject to tax in more than one state, a potential Commerce Clause issue arises.
However, the Commerce Clause itself is inapplicable to the present case. There is no sale of goods. The train crew members are not paying a fee for the privilege of being transported to a destination. There is not a sale of transportation services to the train crew members. The train crew members are not passengers, and should not be treated as such, despite the insistence of their counsel.
To the contrary, the train crew members are receiving wages in exchange for labor performed on the train. This distinction was emphasized in Sjong where the court stated:
*973The main distinction between the instant case and the situation described in the Petronia case is that Petronia earned his income while employed on a vessel in Alaska waters. Here, Sjong catches crab outside of Alaska in international waters and then sells them within the state.
622 P.2d at 971.
The Petronia court summarized this principle by stating that an income tax:
makes no attempt to interfere with or control the conduct of any business. It is not a privilege tax.
* * * * * *
The instant tax is not a direct tax upon interstate commerce or the vessels engaged therein. It is rather a tax upon the income derived therefrom, properly proportioned so as to tax only that net income of seamen which is earned within the jurisdiction of Alaska. [Emphasis added.]
418 P.2d at 761.
Where the present case does not deal with the sale of goods within the taxing state, the Commerce Clause cannot be violated. Based on this reasoning, the cases relied upon in this Court’s Opinion that deal with foreign corporations making sales within a taxing state are inapposite with regard to whether or not a nonresident individual has a sufficient nexus with the state he performs labor in.
CONCLUSION
Based on the foregoing, the Idaho State Tax Commission respectfully requests the Court to modify its Opinion and hold that the Idaho Income Tax Act, imposing a tax on the income of train crew members performing labor on through 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.
Upon doing so, the Court should consider the question of the applicable statute of limitations which has been fully briefed and argued and hold that, as a matter of law, the statutes of limitation for state tax purposes does not begin to run until a taxpayer has properly filed the required return.
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.
DATED this 29th day of June, 1988.