EAN Holdings, LLC v. Dept. of Rev.

200 August 12, 2020 No. 11

IN THE OREGON TAX COURT

REGULAR DIVISION

EAN HOLDINGS, LLC,

Plaintiff,

v.

DEPARTMENT OF REVENUE,

Defendant.

(TC 5337)

On cross-motions for summary judgment, Plaintiff (taxpayer), a provider of

rental car services and Defendant disagreed as to whether Plaintiff purchased

its vehicles “at retail” or “at wholesale.” Taxpayer argued that, due to the volume

and indiscriminate nature of its vehicle purchases, it should not have been con-

sidered a retail buyer. The court, after considering the text, similar statutes, and

the legislative history of the Use Tax, concluded that the phrase “vehicles pur-

chased at retail” means vehicles purchased by a purchaser other than for resale.

The court determined that the Use Tax applied to taxpayer’s purchases.

Oral argument on cross-motions for summary judgment

was held on August 13, 2019, in the courtroom of the Oregon

Tax Court, Salem.

Eric J. Kodesch, Lane Powell PC, Portland, filed the

motion and argued the cause for Plaintiff.

James C. Strong, Assistant Attorney General, Depart-

ment of Justice, Salem, filed the cross-motion and argued

the cause for Defendant Department of Revenue.

Decision for Defendant rendered August 12, 2020.

ROBERT T. MANICKE, Judge.

I. INTRODUCTION

Plaintiff (taxpayer) and Defendant (the department)

cross-move for summary judgment regarding applicability

to taxpayer of the vehicle use tax (Use Tax) imposed by ORS

320.410.1 The period at issue is the first quarter of 2018.

Taxpayer appealed to the Magistrate Division from the

department’s denial of a refund, and this division hears the

appeal by special designation.

1

All references to the Oregon Revised Statutes (ORS) are to the 2017 edition

unless otherwise indicated.

Cite as 24 OTR 200 (2020) 201

Taxpayer offers car rental services in Oregon and

elsewhere under the trade names “Enterprise Rent-A-Car,”

“Alamo Rent a Car,” and “National Car Rental.” Taxpayer

buys vehicles for the purpose of renting them to custom-

ers for temporary possession, and not for the purpose of

transferring title to a customer. Taxpayer is one of a num-

ber of subsidiaries of Enterprise Holdings, Inc. (Enterprise

Holdings), which negotiates with manufacturers for large

numbers of vehicles to be delivered periodically to each sub-

sidiary. Taxpayer and each other subsidiary, however, buy

these vehicles from a small number of “central” dealers.2 The

negotiations by Enterprise Holdings, and the purchases by

taxpayer and other subsidiaries, are for vehicles of a certain

“class” (economy, intermediate, etc.), without regard to make

or model. The vehicles are “drop shipped,” meaning that the

selling dealer causes the manufacturer to ship them directly

from the manufacturer’s location to the subsidiary’s speci-

fied locations, including in this case taxpayer’s locations in

Oregon. All central dealers are outside Oregon. In the quar-

ter at issue, taxpayer acquired 2,717 vehicles at its Oregon

locations, out of approximately 250,000 that taxpayer and

the other subsidiaries of Enterprise Holdings acquired

nationwide.

The tax at issue is relatively new. The 2017 legis-

lature adopted a wide-ranging transportation bill compris-

ing nearly 100 pages. See Or Laws 2017, ch 750, §§ 89 - 111

(HB 2017). Some seven pages contain a set of new taxes on

transactions involving certain motor vehicles (and certain

bicycles), codified primarily at ORS 320.400 to 320.490. ORS

320.405(1) imposes a tax “on each vehicle dealer for the priv-

ilege of engaging in the business of selling taxable motor

vehicles at retail in this state” (the “Privilege Tax”). The tax

rate is 0.5 percent of a taxable vehicle’s “retail sales price,”

and the vehicle dealer may collect the privilege tax from the

purchaser. ORS 320.405(2) - (3).

ORS 320.410 imposes the Use Tax at the same rate

and upon the same tax base (the “retail sales price”), stating

in subsection (1):

2

Taxpayer explains that state franchise law prohibits manufacturers from

selling vehicles directly to taxpayer. See ORS 650.130(12).

202 EAN Holdings, LLC v. Dept. of Rev.

“A use tax is imposed on the storage, use or other con-

sumption in this state of taxable motor vehicles purchased

at retail from any seller.”

ORS 320.410(1) (emphasis added). Subsection (4) provides:

“The use tax shall be reduced, but not below zero, by the

amount of any privilege, excise, sales or use tax imposed by

any jurisdiction on the sale, or on the storage, use or other

consumption, of the taxable motor vehicle. The reduction

under this subsection shall be made only upon a showing

by the purchaser that a privilege, excise, sales or use tax

has been paid.”

ORS 320.410(4) reduces the Use Tax by the amount of any

Oregon Privilege Tax (or any listed tax of another jurisdic-

tion) that the seller pays on the same sale of the same vehicle.

The Use Tax thus complements the Privilege Tax, ensuring

that the “privilege tax can be imposed on in-state vehicle

dealers without placing them at a competitive disadvantage

to out-of-state vehicle dealers * * *.” AAA Oregon/Idaho Auto

Source v. Dept. of Rev., 363 Or 411, 425, 423 P3d 71 (2018).

In many circumstances, the seller is responsible for collect-

ing and remitting the Use Tax. See ORS 320.420(1); ORS

320.445. However, if the seller does not collect the Use Tax

from a purchaser, the purchaser must report and remit the

Use Tax to the department. ORS 320.455. In this case, tax-

payer was the purchaser, and neither party asserts that any

of the central dealers, or any other person, collected or paid

any amount of tax on the transactions at issue.

II. ISSUE

The sole issue is whether the Use Tax applies to

taxpayer’s purchases.

III. ANALYSIS

Taxpayer’s sole argument is that the Use Tax does

not apply because taxpayer did not purchase its vehicles “at

retail,” as required by ORS 320.410(1). Because the mean-

ing of that statutory phrase is at issue, the court applies

the analytical steps in State v. Gaines, 346 Or 160, 171-72,

206 P3d 1042 (2009), starting with the text and context

of the statute, proceeding to the legislative history to the

extent useful, and consulting general maxims of statutory

Cite as 24 OTR 200 (2020) 203

construction to the extent the legislature’s intent remains

unclear.

A. Text

The legislature has not defined “at retail” or “retail”

in ORS 320.400 to 320.490. Applying the Oregon Supreme

Court’s approach, this court will first examine the “plain

meaning” of the term, on the assumption that the legisla-

ture intended a term left undefined to have its meaning in

ordinary use. The court will next determine whether the

term has a specialized, or “technical” meaning, which may

be a specialized “legal” meaning or a specialized meaning

from some other field. If the court discovers a technical

meaning that differs from the plain meaning, the court will

examine usage in context to determine whether the legis-

lature intended to use the term in that different, technical

sense. See DCBS v. Muliro, 359 Or 736, 745-46, 380 P3d

270 (2016) (examining competing plain and technical legal

meanings of phrase “receives * * * notice”); State v. McNally,

361 Or 314, 321-22, 392 P3d 721 (2017) (examining plain

and technical legal meanings of “passive resistance”; find-

ing same meaning in both contexts); Comcast Corp. v. Dept.

of Rev., 356 Or 282, 296, 337 P3d 768 (2014) (rejecting reli-

ance on plain meaning of “data transmission services”; look-

ing to contemporaneous publications and other examples

of usage in telecommunications field to arrive at technical

meaning).

Starting with the plain meaning, both parties cite

the same dictionary, each relying on different portions.

Taxpayer cites the definition of “retail”:3

“the sale of commodities or goods in small quantities to

ultimate consumers — opposed to wholesale

“—at retail adverb

“: at a price customarily asked by a retailer : retail

“<sold at retail>”

3

Taxpayer cites the definition of “retail” as a noun, while the department

emphasizes the adverbial phrase “at retail.” The court finds no material differ-

ence based on usage of “retail,” derivative forms such as “retailer,” or the usage

as a particular part of speech.

204 EAN Holdings, LLC v. Dept. of Rev.

Webster’s Third New Int’l Dictionary at 1938 (unabridged ed

2002) (italics in original). Taxpayer also cites the definition

of “wholesale,” referred to above:

“1 : the sale of goods or commodities in quantity usually for

resale (as by a retail merchant)

“2 : a large scale or indiscriminate transaction or maneu-

ver—used especially in the phrase by wholesale”

Id. at 2611 (italics in original). Taxpayer emphasizes the

references in both definitions to the quantity of goods sold:

“small quantities” are associated with “retail,” while whole-

sale sales are “in quantity usually for resale.” Taxpayer

argues that these references support its position because

taxpayer buys vehicles in quantities that clearly are large

(2,717 vehicles in a single calendar quarter). Furthermore,

there are good grounds for taxpayer’s assertion that it buys

vehicles “indiscriminately,” as it selects them by vehicle

class rather than with a focus on specific preferences such

as color, or even the precise model.

The department, on the other hand, points out that

the phrase “at retail” is defined by reference to a price cus-

tomarily asked by a “retailer.” Webster’s defines “retailer”

as:

“a merchant middleman who sells goods mainly to ulti-

mate consumers[.]”

Id. at 1938. The department, therefore, asks the court to

focus not on the quantity of items but on whether taxpayer

is the “ultimate consumer” of the vehicles. Because taxpayer

buys the vehicles with no intention of reselling them, the

department argues that taxpayer buys its vehicles “at retail.”

The department cites sales and use tax statutes from other

states as context, asserting that those statutes, and cases

interpreting them, confirm that taxpayer overemphasizes

the references to quantity in Webster’s.

The court concludes that the plain meaning of a

purchase “at retail” could refer either to a purchase of a

small number of vehicles or to a purchase of any number of

vehicles if the purchaser buys them for the purpose of con-

sumption and not for resale.

Cite as 24 OTR 200 (2020) 205

The court now tests whether technical definitions

of “at retail” exist, and whether those differ from the defini-

tions the parties cite. The court turns first to a legal dictio-

nary to determine whether it defines the term. See Norden

v. Water Resources Dept., 329 Or 641, 645-47, 996 P2d 958

(2000) (“Words that have a well-defined legal meaning are

given that meaning.”) (looking to Black’s Law Dictionary for

legal meaning of “finding of fact”); see also, e.g., Dept. of Rev.

v. Croslin, 345 Or 620, 628, 201 P3d 900 (2009) (looking to

Black’s Law Dictionary for meaning of “damages”). In this

case, Black’s Law Dictionary (Black’s) defines “retail”4 as

follows:

“The sale of goods or commodities to ultimate consum-

ers, as opposed to the sale for further distribution or pro-

cessing. Cf. WHOLESALE. — retail, adj. — retail, vb.”

Black’s at 1509 (10th ed 2014) (underscoring and boldface in

original). And Black’s defines the noun “wholesale” as:

“The sale of goods or commodities usu. to a retailer for

resale, and not to the ultimate consumer.”

Id. at 1832.5 The terms “retail” and “wholesale” thus

have established legal meanings, each of which supports

the department’s interpretation, referring exclusively to

whether the transaction is a sale to an “ultimate consumer,”

as opposed to a sale “for resale” or “for further distribution

or processing,” and with no mention of the quantity of goods

sold.

The court briefly considers whether “retail” has

a widely accepted technical definition other than its gen-

eral legal definition. See Comcast, 356 Or at 296-315 (court

potentially considers use of terms in specialized disci-

plines, trades, professions, industries, looking to technical

and industry dictionaries, articles and other publications).

Although it may be possible to identify discrete “fields” in

which the term is used, such as the vehicle industry, nei-

ther party has provided any such information to the court.

4

Black’s contains no separate definition of “at retail” or “at wholesale.”

5

The court notes that the definitions of both terms in the most recent edition

of Black’s are identical to those in the 2014 edition, which would have been avail-

able to the 2017 legislature. See Black’s at 1573, 1914 (11th ed 2019).

206 EAN Holdings, LLC v. Dept. of Rev.

Assuming “taxation” were recognized as its own field for this

purpose, the court is not aware of any dictionary or glossary

widely recognized as authoritative.6

The court proceeds to analyze the context of the

legislature’s use of “retail,” as well as any legislative his-

tory, to determine whether the legislature intended (a) the

quantity-based plain meaning for which taxpayer contends;

(b) the consumption-not-resale-based meaning for which the

department contends, which is based on the alternate plain

meaning and overlaps with the technical legal meaning; or

(c) another meaning that might emerge. See DCBS v. Muliro,

359 Or at 745-46.

B. Context

The court looks first for any relevant context within

the remaining provisions that impose the Privilege Tax and

the Use Tax, ORS 320.400 to 320.490. Nothing in those pro-

visions refers to large or small numbers of vehicles. On the

other hand, a provision exempting a seller from both the

Privilege Tax and the Use Tax states:7

“Notwithstanding ORS 320.405 to 320.420, a resale cer-

tificate taken from a purchaser ordinarily engaged in the

business of selling taxable vehicles relieves the seller from

the obligation to collect and remit transportation project

taxes. A resale certificate must be substantially in the form

prescribed by the Department of Revenue by rule.”

ORS 320.425(3) (emphases added). The requirements that

the purchaser deliver a resale certificate and be “ordinarily

engaged in the business of selling” vehicles in order for the

exemption to apply appear to exempt the same transactions

that are excluded under the technical legal definitions of

“retail” and “wholesale,” as well as the alternate plain mean-

ing on which the department relies. The department argues

6

The parties cite Jerome R. Hellerstein and Walter Hellerstein, State

Taxation (3rd ed 2016), a leading treatise on state taxation, to which the court

also refers below. Neither party cites the treatise as a source of definitions, and

the court views the treatise as seeking to explain the state of the law, as opposed

to defining terms.

7

The court here uses the term “exempt” as shorthand, to denote that

ORS 320.425(3) purports to eliminate the duty to collect and remit Use Tax

“[n]otwithstanding” the remaining provisions of the Privilege and Use Tax law.

ORS 320.425(3) nowhere uses the term “exempt.”

Cite as 24 OTR 200 (2020) 207

that this consistency proves its point, while taxpayer argues

that the overlap proves that the legislature could not have

intended a narrow definition of “retail.” In other words, tax-

payer argues that the legislature would not have needed to

add an exemption for sales for resale if the definition of a tax-

able “retail” transaction already excluded a sale for resale.

Testing taxpayer’s argument, the court finds in the

Privilege and Use Tax statutes one additional instance in

which the legislature appears to have addressed a single

point in multiple provisions. ORS 320.425(2) provides:

“Notwithstanding ORS 320.405, a seller is not liable

for the privilege tax with respect to an otherwise taxable

motor vehicle that is sold at an event that lasts less than

seven consecutive days, for which the public is charged

admission and at which otherwise taxable motor vehicles

are sold at auction.”

The exemption applies to a “seller,” a term defined to mean a

“vehicle dealer.” See ORS 320.400(4)(a) (defining “seller” for

purposes of Privilege and Use Taxes as a “vehicle dealer”).

However, this exemption appears to be fully replicated in

an exclusion from the definition of “vehicle dealer” in ORS

320.400(9)(b), which states:

“Notwithstanding [the definition of “vehicle dealer” in]

paragraph (a) of this subsection, a person is not a vehicle

dealer for purposes of ORS 320.400 to 320.490 and 803.203

to the extent the person:

“(A) Conducts an event that lasts less than seven con-

secutive days, for which the public is charged admission

and at which otherwise taxable motor vehicles are sold at

auction; or

“(B) Sells an otherwise taxable motor vehicle at auc-

tion at an event described in this paragraph.”

Therefore, the exemption in ORS 320.425(2) appears to

apply to transactions at short-term, admission-only auc-

tion events already excluded under the definition in ORS

320.400(9). This context cautions against accepting taxpay-

er’s argument that the legislature could not have intended

to repeat itself by covering the same ground in two separate

provisions.

208 EAN Holdings, LLC v. Dept. of Rev.

The court finds it more plausible that the legisla-

ture intended the resale exemption in ORS 320.425(3), with

its specific requirement of a resale certificate, to serve as a

mechanism to implement the narrower of the two competing

definitions of “retail.” Under this view, a purchase or sale “at

retail” is any purchase or sale not for resale, and a seller uses

the resale certificate to prove that the sale is not “at retail,”

keeping that proof on file for the department to inspect. See

ORS 320.460(1) (five-year record retention requirement). By

this same mechanism, the seller also forestalls the statutory

presumption that a vehicle found to have been delivered in

Oregon was sold for “storage, use or other consumption” in

Oregon. See ORS 320.420(3)(b)(B).8 The presumption exists

to “ensure the proper administration of [the Use Tax] and to

prevent evasion * * *.” ORS 320.420(3).

The court contrasts this tentative view—a defini-

tion of “retail” that excludes all sales for resale, seamlessly

coupled with an exemption statute that requires a paper

trail of all resale transactions for the department to check

on audit—with taxpayer’s position at oral argument. There,

taxpayer argued that the legislature intended to leave unde-

fined both (1) the absolute number of vehicles that a pur-

chaser would have to buy to achieve tax-free wholesale sta-

tus; and (2) the time period over which those sales would have

to occur.9 Taxpayer asserted that the legislature intended

that the department adopt rules to define these terms, but

taxpayer acknowledged that the legislature nowhere said

so expressly. See ORS 320.480(2) (department “may” adopt

rules “that the department considers necessary or appro-

priate” to implement, administer and enforce Privilege and

Use Taxes). From the context supplied by ORS 320.425(3)

and ORS 320.420(3), the court concludes that a legislature

concerned with “proper administration” of the Privilege and

Use Taxes is unlikely to have left these critical numbers and

time periods to interpretation by either the department or

this court.

8

The resale certificate is similar to the proof a seller collects and retains

when it sells a vehicle for storage, use or other consumption outside Oregon. See

ORS 320.420(3)(c). Both documents identify the purchaser and thus enable the

department to seek further verification that the purchaser actually resold the

vehicle or exported it for use outside the state.

9

E.g., six sales per day, 50 sales per month, 25 sales per quarter, etc.

Cite as 24 OTR 200 (2020) 209

Taxpayer points to Oregon alcoholic beverage license

law as a source of relevant context, as that law too uses

the terms “retail” and “wholesale” without defining them.

Taxpayer’s argument is based on ORS 471.175(1) and (7)

and ORS 471.178(1) and (3), which allow holders of a “full

on-premises sales license” or a “limited on-premises sales

license,” respectively, to sell “by the drink at retail” on the

premises and “not more than two gallons” for off-site con-

sumption. Taxpayer contrasts these provisions with ORS

471.235(1), which allows the holder of a “wholesale malt

beverage and wine license” to sell “in quantities of not less

than four gallons” to consumers for consumption not on the

licensed premises or to certain unlicensed organizations.

Taxpayer argues that these provisions show that it is quan-

tity that differentiates between “retail” and “wholesale”

when the legislature has not defined those terms. This argu-

ment, however, ignores the fact that each of these statutes

also is fully consistent with a meaning of “retail” as “not

for resale.” Each states that “all alcoholic beverages sold

under [the respective type of on-premises license] must be

consumed on the licensed premises.” ORS 471.175(1); ORS

471.178(1). Meanwhile, a wholesale wine and malt beverage

licensee “may not sell any alcoholic liquor for consumption

upon the licensed premises.” ORS 471.235(1). As to malt bev-

erages, the statute expressly states: “A wholesale malt bev-

erage and wine license shall permit the licensee also to sell

malt beverages at wholesale only, to persons holding licenses

authorizing the persons to resell such beverages at retail.”

Id. (emphasis added). Far from persuading the court that

the legislature generally intends “retail” and “wholesale” to

refer to small and large quantities of goods sold, these stat-

utes indicate that the legislature intended “retail” to mean a

sale to a consumer and “wholesale” to mean a sale for resale.

Taxpayer also cites cannabis sales tax provisions

that differentiate between a “marijuana retailer” and a

“marijuana wholesaler.” The definitions themselves are

fully consistent with the department’s position in this case.

See ORS 475B.015(23) (“ ‘Marijuana retailer’ means a person

that sells marijuana items to a consumer in this state.”);

ORS 475B.015(25) (“ ‘Marijuana wholesaler’ means a person

that purchases marijuana items in this state for resale to a

210 EAN Holdings, LLC v. Dept. of Rev.

person other than a consumer.”) Taxpayer, relying solely on

the primary Webster’s definition, argues that the cannabis

tax provisions show that the legislature found it necessary

to craft express definitions in order to “deviate from the

Webster’s distinction” based on small vs. large quantities of

goods sold. The court observes, however, that the legislature

has enacted express definitions consistent with the depart-

ment’s position in the tobacco tax statutes as well. See ORS

323.010(17) (cigarette tax) (defining “wholesaler” as “any

dealer who engages in the sale of cigarettes to any other

dealer for purposes other than use or consumption”); ORS

323.500(11) (other tobacco products tax) (defining “retail

dealer” as “any person who is engaged in the business of

selling or otherwise dispensing tobacco products to consum-

ers”); see also ORS 323.085(2) (stating legislative intention

to impose cigarette taxes on the “retail consumer”). In addi-

tion, as discussed at oral argument, the corporate activity

tax, also enacted in 2017, defines “retailer” in a manner con-

sistent with the department’s position, excluding a person

who sells for resale.10 In short, there are multiple examples

of the legislature expressly distinguishing for excise tax

purposes between a sale for consumption or use and a sale

for resale.

By contrast, taxpayer cites only one example in

which the legislature seems to have defined a relevant term

(“nonretail”) solely in terms of quantity of goods sold and

not also by whether the transaction is a sale for resale. The

example is a nontax statute, ORS 480.345, which allows cer-

tain persons to pump their own gasoline or certain other

fuels. The statute refers to those persons as “nonretail cus-

tomers,” which generally include certain purchasers of “at

least 900 gallons” of the specified fuel “during a 12-month

period,” but also include 14 listed categories of persons

10

The corporate activity tax definition also excludes two variants of a sale for

resale: the sale for use as an ingredient in real or personal property or for incor-

poration into a new article of tangible personal property. See ORS 317A.100(15)

(“ ‘Retailer’ means a person doing business by selling tangible personal prop-

erty to a purchaser for a purpose other than: (a) Resale by the purchaser of

the property as tangible personal property in the regular course of business;

(b) Incorporation by the purchaser of the property in the course of regular business

as an ingredient or component of real or personal property; or (c) Consumption by

the purchaser of the property in the production for sale of a new article of tangible

personal property.”).

Cite as 24 OTR 200 (2020) 211

who qualify without having to make such minimum pur-

chases, including farmers, government emergency service

providers, and certain other local government entities. ORS

480.345(2). The court finds it significant that the legislature

took pains to define the quantity, within a specified time,

that constituted “nonretail” purchases. Overall, the court

concludes from the context supplied by the four other excise

tax statutes that the legislature regularly treats “retail”

transactions as the opposite of transactions “for resale.” And

taxpayer’s reference to the gas pumping statute reinforces

the court’s conclusion that when the legislature uses “retail”

in the quantity-based sense, it specifies the quantity, and

the time period over which that quantity must be reached,

so as to avoid ambiguity. The court concludes that the statu-

tory context supports the view that the legislature intended

“at retail” to refer to a sale other than a sale for resale.

Taxpayer also asserts that, even under a definition

of “at retail” that disregards the quantity of goods sold, tax-

payer is not the “ultimate consumer” of the vehicles it pur-

chased.11 Taxpayer does not seriously contend that it is not

a “consumer” of the vehicles, a term that it acknowledges

means one who “utilizes” or “uses” something. (Quoting

Webster’s definition of “consume” as to “utilize (an economic

good) in satisfaction of wants or the process of production.”

(Internal quotations omitted.)).12 Rather, taxpayer contends

that it is not the “ultimate” consumer because it buys the

vehicles for the purpose of allowing others to use them.

However, the legislature did not use the word “ultimate”;

that word appears only in the dictionary definitions. In

the same sentence as the phrase “at retail,” the legislature

used the words “consumption” and “use” without the modi-

fier “ultimate.” See ORS 320.410(1). The court has concluded

above that the legislature’s intent in using the term “at

retail” was to distinguish purchases “for resale.” The court

sees no need to determine the “ultimate” user or consumer

of the vehicles, as among taxpayer as licensor to customers,

11

The department, too, states its version of the test in terms of sales to the

“ultimate consumer.”

12

Although neither party cited a legal definition, the court finds that the

established legal definitions of “consume,” “consumption,” and “consumption tax”

do not materially differ from the definitions in Webster’s on which taxpayer relies.

See Black’s at 382, 384, 1685 (10th ed); 395, 396, 1759 (11th ed).

212 EAN Holdings, LLC v. Dept. of Rev.

the rental customers as drivers, the secondary purchasers

once taxpayer decides to replace them, or the steel recycler

at the end of their life.13 It is sufficient that taxpayer uses

the vehicles and does not buy them for resale in the ordinary

course of its business. (Taxpayer “does not acquire vehicles

for the purpose of engaging in transactions in which it trans-

fers title to the vehicles to a customer.”) The parties’ focus on

the “ultimate” consumer adds no relevant context and does

not change the court’s conclusion that taxpayer’s purchases

were at retail because they were not for resale.

C. Legislative History

Neither party relies extensively on legislative his-

tory. Taxpayer cites a 2017 revenue impact report on HB

2017, pointing out that the amount of anticipated revenue

stated in that report ($1.8 million for 2017-19 biennium) later

proved far less than the actual revenues received ($4.45 mil-

lion actual collections as of August 31, 2018). Those numbers

alone are simply insufficient to help the court. Taxpayer

points to no testimony, committee dialogue, or other narra-

tive that would trace the difference in collections to a leg-

islative intention to not impose the Privilege or Use Taxes

on fleet purchases by car rental companies, as opposed to a

forecasting error or events occurring after the bill passed.

IV. CONCLUSION

Based on the text and context, the court concludes

that the legislature intended the phrase “vehicles pur-

chased at retail” to mean vehicles purchased by a purchaser

other than for resale. Taxpayer does not argue that its pur-

chases were for resale. Accordingly, the Use Tax applies to

taxpayer’s purchases for the taxable quarter at issue. Now,

therefore,

13

For a discussion of line-drawing problems in the imposition of sales and

use taxes within the chain of consumption, see Hellerstein & Hellerstein ¶ 12.01

(“[A] theoretically ideal retail sales tax would exclude business inputs from the

tax base. In fact, however, the American sales tax deviates substantially from

this norm: Roughly 40 percent of state sales tax revenues are attributable to

business purchases.”); ¶ 12.04 (“Despite the theory that a retail sales tax should

apply only to final sales for household consumption, in practice the sales tax is

not confined to transfers to the ultimate consumer of the final product produced

in the economic process.”).

Cite as 24 OTR 200 (2020) 213

IT IS ORDERED that Plaintiff’s Motion for

Summary Judgment is denied; and

IT IS FURTHER ORDERED that Defendant’s

Cross-Motion for Summary Judgment is granted.