# Bi Go Markets, Inc. v. Morton

> Supreme Court of Missouri · December 18, 1992 · 843 S.W.2d 916

URL: https://www.frixlaw.com/law-library/cases/5082377

## Case

- **Full name:** BI GO MARKETS, INC., and Wetterau Incorporated v. Kenneth D. MORTON, Assessor for St. Louis County, Missouri
- **Court:** Supreme Court of Missouri
- **Decided:** December 18, 1992
- **Citations:** 843 S.W.2d 916; 1992 Mo. LEXIS 145; 1992 WL 372254
- **Precedential status:** Published
- **Opinion:** Concurrence by Benton
- **Judges:** Benton, Covington, Holstein, Limbaugh, Price, Robertson, Thomas
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5082377

## Opinion text

BENTON, Judge,
concurring.
I concur fully in the thorough majority opinion but write separately to emphasize the practicalities of this case.
“[A] four-part test ... continues to govern the validity of state taxes under the Commerce Clause.” Quill Corp. v. North Dakota, — U.S. —,—, 112 S.Ct. 1904, 1912 , 119 L.Ed.2d 91 (1992): (1) Is there sufficient connection to the state to justify the tax? (2) Is the tax fairly related to benefits provided the taxpayer? (3) Does the tax discriminate against interstate commerce? and, (4) Is the tax unfairly apportioned? Complete Auto Transit v. Brady, 430 U.S. 274, 278, 287 , 97 S.Ct. 1076, 1078, 1083 , 51 L.Ed.2d 326 (1977). “Complete Auto emphasized the importance of the looking past ‘the formal language of the tax statute [to] its practical effect.’ ” Quill Corp., — U.S. at —, 112 S.Ct. at 1912 , quoting Complete Auto, 430 U.S. at 279 , 97 S.Ct. at 1079 . Complete Auto requires a “practical analysis” of the “economic realities.” Complete Auto, 430 U.S. at 279 , 97 S.Ct. at 1079 .
The taxpayer here focuses mainly on the fourth prong, apportionment. The taxpayer assumes that to satisfy Complete Auto, the apportionment must be conscious and intentional. Complete Auto imposes no such express requirement but looks to the result whether “the tax is unfairly apportioned.” Complete Auto, 430 U.S. at 278 , 97 S.Ct. at 1078 . As demonstrated by the raw numbers in this case, a fair apportionment did occur. The taxpayer can expect no more.
In this case, the “operating fee” paid New Hampshire is $57,230 for 1991. In contrast, Missouri’s personal property tax is about $300,000 for 1991 — approximately five times the New Hampshire fee. According to the flight logs, the aircraft spent five times as many nights in Missouri as in all other states. Missouri’s personal property tax thus achieves a fair apportionment.
This “practical analysis” of the “economic realities” is particularly appropriate because the New Hampshire fee and Missouri *922 tax are not comparable, except as to “bottom-line” amount. The New Hampshire operating fee is, during the first 10 years, (mostly) a decreasing percentage of “manufacturer’s list price” and a flat fee thereafter. N.H.R.S.A. § 422.37. Enforcement is by criminal penalties. N.H.R.S.A. §§ 422.-34, 422.35. Revenue goes to a specific “Aeronautical Fund,” to pay for airports and airport bonds. N.H.R.S.A. § 422.42.
The Missouri tax is a traditional ad valo-rem tax, with the traditional valuation, reduced to assessment, multiplied by a combined tax rate of local governments. §§ 137.075-137.420 RSMo 1986. Enforcement is against the property, as well as against the person. §§ 139.120, 140.730 RSMo 1986. Revenue goes to the general budgets of local governments.
The facts of this case, therefore, accord with the standard that a challenged tax shall be compared only to identical taxes in other states. Goldberg v. Sweet, 488 U.S. 252, 261 , 109 S.Ct. 582, 588 , 102 L.Ed.2d 607 (1989); cf. Moorman Mfg. Co. v. Bair, 437 U.S. 267, 278 , 98 S.Ct. 2340, 2347 , 57 L.Ed.2d 197 (1978) (approving result of apportionment of overlapping taxes). By a practical analysis, the Missouri personal property tax in this case does not violate the Commerce Clause.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5082377. Public record. Not legal advice.