taxation

California Court of Appeals Affirms Injunction against Indian Tobacco Retailer on Agua Caliente Reservation

Matthew L.M. Fletcher

Here is the unpublished opinion in People ex rel. Brown v. Black Hawk Tobacco, Inc.

An excerpt:

The superior court granted a preliminary injunction, prohibiting defendants and appellants Black Hawk Tobacco, Inc. (Black Hawk) and Frederick Allen McAllister (McAllister) from selling cigarettes to non-Indians in violation of state and federal laws. Black Hawk and McAllister appeal from the order granting the injunction. (Code Civ. Proc., § 904.1, subd. (a)(6).) On appeal, defendants argue that the State of California cannot regulate defendants’ sale of cigarettes to non-Indians because defendants are operating stores located on trust lands held by the United States for the Agua Caliente Band of Cahuilla Indians (the Band), a federally-recognized tribe. We reject this argument and hold the superior court did not abuse its discretion in granting the preliminary injunction against defendants.

Prophet River First Nation v. Rath & Co.: Attorney Fees & Taxes

Peter Scott Vicaire

In Prophet River First Nation v. Rath & Co., a  judge from the Alberta Court of Queen’s Bench has exercised his discretion and extended the time allotted for taxation of lawyer’s fees ($10 million) in connection with a larger settlement ($130 million) between Prophet River First Nation and the Government of Canada. 

This settlement was in the news in 2008 when members of that first nation took over their band office in a peaceful sit-in.  They were upset that Chief Liza Wolf and Councillors Lorraine Wolf and Loretta McAllister gave themselves each a $800,000 lump sum payments as part of the “administration costs” of the lawsuit.

When those three were ousted in an election, the new Chief and Councillors commenced this action, seeking to tax the funds received by the law firm, Rath & Co., even though the deadline had passed.

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Seneca Nation v. State of New York Appellate Division Materials

Matthew L.M. Fletcher

Here:

Appellate Division Order to Show Cause

Appellate Court Decison and Order

Federal Court of Appeal Denies Remission of First Nation Tax Debt

Peter Scott Vicaire

In Waycobah First Nation v. Canada (Attorney General), the Federal Court of Appeal (Halifax) recently dismissed an appeal concerning the non-payment of taxes by Waycobah First Nation, a small community in Cape Breton Island, Nova Scotia.  Relying on an 18th century treaty, Waycobah didn’t collect HST taxes from non-aboriginals when they purchased gas and cigarettes from the reserve-owned gas station.  By the time the tax man did cometh, Canada claimed that Waycobah owed $1.3 million, and after an agreed upon repayment schedule was not adhered to, it eventually rose to $3.4 million.

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Florida Appeals Court Rules against Seminole Tribe in Gas Tax Case

Matthew L.M. Fletcher2 Comments

Here is the opinion in Florida Dept. of Revenue v. Seminole Tribe of Florida.

An excerpt:

Taxability of gasoline purchased outside of Indian lands is the issue in this appeal. The Department of Revenue appeals a final summary judgment for the Seminole Tribe of Florida, declaring motor fuel taxes imposed on the Tribe for purchases of fuel off the reservations and trust lands, but used on tribal lands, invalid and directing the State to refund those taxes. It argues the trial court erred as a matter of law in ruling against the Department of Revenue. We agree and reverse.

We posted briefs here.

Tax Court of Canada: s. 87 Indian Act Tax Exemption – You Win Some, You Lose Some

Peter Scott Vicaire

With the recent glut of denied appeals for aboriginals seeking s. 87 tax exemption, it’s promising to see a case where the court did in fact, provide that shelter. 

Thanks to Scott Robertson of Gowlings Ottawa (notwithstanding that I interviewed with Gowlings Ottawa in 2008 and wasn’t offered a job.  But I digress…)  for pointing out Dugan v. The Queen, 2011 TCC 269, a recent case where the Tax Court of Canada  accepted three (of five) appellants’ claims for s. 87 tax protection.   

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Nahwegahbow v. R: No Indian Act s. 87(1)(b) Income Tax Exemption For Off-Reserve Aboriginals

Peter Scott Vicaire

A day after the hearings of Baptiste v. R., the Tax Court of Canada heard three more appeals in Nahwegahbow v. R, dealing with similar facts – but mainly that their employer was Native Leasing Services (NLS).  Since the court found against the interests of the aboriginal appellant in Baptiste, the writing was on the wall for Mrs. Nahwegahbow and her fellow appellants.

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Tax Court of Canada Rejects Aboriginal Woman’s Claims To s. 87 Protection From Taxation

Peter Scott Vicaire2 Comments

In Baptise v. R., the Tax Court of Canada rejected Ms. Baptise’s (Pikwakanagan Algonquin First Nation ) arguments that her multi-million dollar work as a liason between her employee bank (Bank of Nova Scotia, by way of NLS, an Aboriginal employment leasing service ) and various First Nations qualified as being protected from taxation,  via s. 87 of the Indian Act.  Relying heavily on Nowegijick v. the Queen, [1983] 1 S.C.R. 29, she claimed that the situs of her employment income was a reserve because the employer’s residence was on a reserve.

The Crown argued that taxing her income did not erode the propertyof those living on a reserve, as discussed in Mitchell v. Peguis Band, [1990] 2 S.C.R. 85.

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Grand River Enterprises Six Nations Ltd. v. Ontario

Peter Scott Vicaire1 Comment

In a civil procedure matter dealing with a case involving seized cigarettes, an Ontario judge adjourned the case sine die until another matter is adjudicated.  Six Nations only wanted it adjourned until some time in July, while Ontario requested the sine die adjournment.  The judge blamed Six Nations for the manner in which it “has chosen to conduct the litigation.”

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California Appellate Court Reverses Order Quashing Summons on Native Wholesale Supply

Matthew L.M. Fletcher1 Comment

Here is the opinion in People ex rel. Harris v. Native Wholesale Supply Co.

An excerpt:

NWS moved successfully to quash service for lack of personal jurisdiction.

NWS is an out-of-state, tribal-chartered corporation that is owned by a Native American individual. Its principal business is the sale and distribution of cigarettes manufactured by Grand River Enterprises Six Nations Ltd. (Grand River), a tribal-owned corporation in Canada. Since late 2003, NWS has sold hundreds of millions of Grand River cigarettes to a small Indian tribe in California, and these cigarettes, in turn, have been sold to the California public.

Based on this scenario, we conclude that NWS has purposefully derived benefit from California activities under the stream of commerce theory, sufficient to invoke personal jurisdiction. Indeed, for personal jurisdiction purposes, we see not just a stream of commerce, but a torrent. Consequently, we shall reverse the order quashing service and remand this matter to the trial court. (Code Civ. Proc., § 904.1, subd. (a)(3).)