taxation – Page 48 – Turtle Talk

Obonsawin v. R.: Assessed For Failure To Collect Tax Does Not Equate To Being Taxed

May 13, 2011Peter Scott Vicaire

In Obonsawin v. R., a case in the Federal Court of Appeal, Roger Obonsawin was appealing a decision of the Tax Court of Canada, which dimissed, with costs, his appeal against the Minister of National Revenue.

Obonsawin was a supplier of goods and argued that he was not obligated to collect and remit the GST owed by his clients on the supplies he provided to them. He claimed that, pursuant to section 87 of the Indian Act, he was exempt from taxation and the GST assessments against him amounted to a tax on his property situated on a reserve or a tax on him in respect of that property.

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New York State Court Issues TRO against Enforcement of State Tax Law

May 11, 2011Matthew L.M. Fletcher

Here is the order, and a related letter from the New York AG informing the Second Circuit of the development:

ORDER – Temporary Restraining Order 05 10 11

NYS Letter to 2d Cir 5-10-11

Commentary on Richard Pomp’s “The Unfulfilled Promise of the Indian Commerce Clause and State Taxation”

May 10, 2011Matthew L.M. Fletcher1 Comment

A few words on probably the most important recent law review article in Indian law — Richard D. Pomp’s The Unfulfilled Promise of the Indian Commerce Clause and State Taxation, 63 Tax Lawyer 897 (2010).

In The Brethren, the 1979 book that opened the door the mysteries of the interior of the Supreme Court (and served as a source of deep embarrassment to several Justices), Bob Woodward and Scott Armstrong found that the Justices of the 1970s, unusually hospitable to the claims of Indian tribes given the history of American Indian law and policy, considered being assigned to draft the majority opinion in an Indian case a sign of disrespect. No Justice wanted those assignments. H.W. Perry, Jr.’s Deciding to Decide (1991), which was the first book detailing the insides of the Court after The Brethren, confirmed that assignments to write majority opinions in Indian cases and tax cases – “the crud” – tended to go to the junior Justices. For example, Chief Justice Burger, according to Woodward and Armstrong, assigned then-Justice Rehnquist an Indian tax case (Moe v. Confederated Salish and Kootenai Tribes, 426 U.S. 463 (1976)) as punishment for a 1975 Supreme Court Christmas party joke gone wrong.

If Indian cases are bad, and tax cases are bad, then Indian tax cases must be the worst.

Or are they?

Richard Pomp’s entertaining paper, The Unfulfilled Promise of the Indian Commerce Clause and State Taxation, blows the lid off of the myth that Indian tax cases are boring.

It turns out that one of the most exciting things about the Indian Commerce Clause is the history of the Clause, which generated more debate at the Constitutional Convention than the Interstate and Foreign Commerce Clauses combined. For some reason (perhaps because Pomp’s article hadn’t yet been written), the Supreme Court has simply refused to engage at all on the “original meaning” of the Indian Commerce Clause. The Court had a chance to in Seminole Tribe v. Florida, 517 U.S. 44 (1996), but Chief Justice Rehnquist just ignored the question by concluding that the three Commerce Clauses were the same for Eleventh Amendment purposes. But maybe since the Supreme Court frequently enters into the thicket of early American history to interpret many Constitutional provisions, the history of the Indian Commerce Clause is worth a second look, as Pomp does here.

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Second Circuit Vacates Injunctions against New York’s Tax Laws against Tribes

May 9, 2011Matthew L.M. Fletcher1 Comment

Here is today’s opinion in Oneida Indian Nation v. Cuomo: OIN v NY CA2 Opinion.

Briefs are here and here.

Fordham Law Review Note on Seneca-New York Tax Disputes

May 7, 2011May 6, 2011Matthew L.M. Fletcher

Here is the pdf of the article, titled “A Tale of Three Sovereigns: The Nebulous Boundaries of the Federal Government, New York State, and the Seneca Nation of Indians Concerning State Taxation of Indian Reservation Cigarette Sales to Non-Indians.”

And the abstract:

This Note examines the conflict between New York State and the Seneca Nation of Indians regarding the taxation of cigarette sales to non-Indians on Indian reservations. In 1994, the United States Supreme Court found New York’s taxation scheme facially permissible without providing boundaries or guidance for the state’s subsequent enforcement. Seventeen years after the Court’s decision, no taxes have been collected on these sales.

The issue involves conflicting spheres of federal, state, and tribal control. From 1965 to 1994, the Supreme Court balanced these competing interests, creating precedent that has failed to provide a definitive solution to this crisis. The Note examines the background of these decisions, the history of the treaties between the Seneca tribe and the United States, and the shift in federal Indian policy towards promoting a government-to-government relationship between the United States government and Indian tribes.

Lastly, this Note proposes a solution modeled on the example of Washington State. Facing a crisis analogous to that of New York, Washington created a lasting solution to its taxation crisis by forging a relationship of trust between the state, its agencies, and the Indian tribes. This Note advocates that New York follow the same path and create cigarette tax compacts between New York and the Indian tribes.

Tax Court of Canada Denies Motion For Advanced Costs For Aboriginals’ Tax Appeals

April 27, 2011Peter Scott Vicaire

Here’s the decision – Roberts v. R.

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Grand River Enterprises Six Nations Ltd. v. R.: Judge Accuses Tribal Cigarette Manufacturer of “Fishing Expedition” In Disclosure Request

April 25, 2011Peter Scott Vicaire

In Grand River Emterprises Six Nations Ltd. v. R., the Federal Court of Appeal denied the request of a tribal corporation which manufactured and sold tobacco products on the Six Nations reserve. The corporation requested disclosure of tax information of other incorporated tobacco companies on other reserves on the assertion that there were first nation tobacco manufacturers who were licensed but did not pay excise duty on tobacco products. The judge considered their disclosure request as irrelevant and dismissed.

Tax Court Determination on Nooksack Tribal Council Members Federal Income Tax Liability for Treaty Fishing-Related Income

April 11, 2011April 11, 2011Matthew L.M. Fletcher

Here is Tax Court Memo 2011-82:

TCM2011-82

The Tax Man Cometh: Aboriginals Working For Aboriginals in Toronto

April 4, 2011April 4, 2011Peter Scott Vicaire

In Davad v. R., The Federal Tax Court of Canada denied the appeal of several Aboriginal people who worked for (1) Miziwe Biik Aboriginal Employment and Training , or (2) Aboriginal Legal Services of Toronto, or (3) the Ontario Federation of Indian Friendship Centres. All of these Aboriginal organizations are located in Toronto and the Aboriginal employees were placed by Native Leasing Services, an Aboriginal job placement business.

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