indian taxation – Page 16

The fundamental reason why plaintiffs are entitled to summary judgment and defendant is not is that when UPS was transporting unstamped cigarettes (how many is “TBD”), it was transporting contraband. Pre-amendment § 471 confirms that stamps were required, that taxability was presumed, and that the burden of proving otherwise was on UPS. UPS has not carried this burden. UPS is not entitled to rely on the judicially imposed injunctions or stays of enforcement obtained by Indian tribes, nor is it entitled to rely upon forbearance. It is also of no moment that there were difficulties in determining when tax was required to be paid or not, and it is also of no moment that the State had stood down on collection from reservation retailers altogether. At the end of the day, the situation — which may have advantaged reservation retailers — placed UPS in a precarious position; without its own statutory exemption or legal assurance, and in the absence of information as to ultimately taxability of the cigarettes they were shipping, transporting shipments was a risky business indeed. But this was a business risk. UPS could choose to undertake such risk or not. One thing has [38] always been clear: UPS has never had exemption from the CCTA.

Counterclaims against US and Poarch Band Dismissed in Tax Dispute

September 13, 2016September 13, 2016Matthew L.M. Fletcher1 Comment

This is a continuation of Poarch Band of Creek Indians v. Hildreth, recently decided by the Eleventh Circuit.

Here are the materials in Poarch Band of Creek Indians v. Moore (S.D. Ala.):

77-magistrate-rr

79-poarch-band-objections

80-dct-order

An excerpt:

After due and proper consideration of all issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(l)(B) and dated August 10, 2016 is ADOPTED as the opinion of this Court with the following exceptions. The Court does not adopt the recommendation to deny the Plaintiff’s Motion to strike Defendant Moore’s affirmative defenses numbered 4 and 5, but rather grants the motion to strike defenses 4 and 5 for the reasons set forth in Plaintiff’s Objections (Doc. 79). The report and recommendation is adopted in all other respects.

Washington COA Decision in Comenout v. Washington State Liquor Control Board

August 9, 2016Matthew L.M. Fletcher

Here.

An excerpt:

In State v. Comenout, our Supreme Court upheld the State’s exercise of nonconsensual criminal jurisdiction over tribal members selling unstamped cigarettes from an unlicensed store located on trust allotment property lying outside the borders of an Indian reservation. Edward Comenout challenges that decision in this administrative forfeiture action appeal arising out of the same seized cigarettes at issue in Comenout. He claims Comenout is not binding because the case was remanded and ultimately dismissed. But we are bound by that decision unless and until the Washington Supreme Court or the United States Supreme Court rules otherwise. Neither court has done so. And under Comenout, it is clear the State court had personal and subject matter jurisdiction in this administrative forfeiture action and that Comenout is not exempt from the State’s cigarette tax as an “Indian retailer.” Because Comenout fails to establish any error of law or arbitrary and capricious action under the Administrative Procedure Act2 (APA) standards, we affirm

New York Largely Prevails in Smokes Suit against King Mountain Tobacco

July 27, 2016Matthew L.M. Fletcher

Here are the materials in State of New York v. King Mountain Tobacco Co. (E.D. N.Y.):

195-1 King Mountain Motion for Summary J

197-1 NY Cross Motion

201 NY Opposition

202 King Mtn Opposition

205 King Mtn Reply

206 NY Reply

214 DCT Order

Eleventh Circuit Affirms Injunction Favoring Poarch Band against Escambia County Assessor

July 12, 2016Matthew L.M. Fletcher1 Comment

Here is the opinion in Poarch Band of Creek Indians v. Hildreth.

An excerpt:

The Poarch Band of Creek Indians (“Poarch Band”) sued James Hildreth,
Tax Assessor of Escambia County, Alabama, for declaratory and injunctive relief to prevent the assessment of property taxes on lands owned by the Poarch Band in Escambia County, Alabama, and held in trust by the United States (“Trust Property”). The Poarch Band maintains the Trust Property is exempt from taxation pursuant to the Indian Reorganization Act of 1934 (“IRA”). See 25 U.S.C. § 465.1 The district court granted injunctive relief barring the tax assessment efforts during the pendency of the case, and Hildreth appeals.2 Finding no abuse of discretion and no error of law, we affirm.

Briefs here.