The opinion
LINDLEY, District Judge
(dissenting).
The Indiana statute imposes a tax upon the gross income of all residents of the state and upon the gross income, “derived from sources within the state,” of nonresidents engaged in business in .the state or “who derive gross income from sources within the state.” Here the income sought to be taxed arose from the delivery in Indiana by the seller to the buyer of railroad ties produced in Indiana, in pursuance of orders received from outside the state. Title passed from the seller to the purchaser upon delivery 'within Indiana and the income received by the seller arose solely from sources within the. state. The tax is' clearly assessable under the statute unless it is a discrimination against or constitutes a burden upon interstate commerce.
A non-discriminatory tax upon articles eventually destined for interstate commerce, even though ordered from without the state, where the transaction is completed within the state, does riot, it seems to me, under the decisions of the Supreme Court, amount, to undue discrimination against, interference with, or burden upon, interstate commerce.
I have fully stated my reasons for this conclusion in my dissent in Re Globe Varnish Co. (Nudelman v. Globe Varnish Company), 7 Cir., 114 F.2d 916 . As said there, the question presented is not one of the power or extent of the power of the Congress to regulate interstate commerce. Rather, it is a question of whether a tax upon income, clearly derived from sources within the state, constitutes discrimination against interstate commerce even though measured by the same yardstick as the tax upon income of residents —whether it is removed from the nondiscriminatory category by the fact that the articles are intended eventually to pass into interstate commerce. An affirmative conclusion, it is my conviction, is not justified under the decisions of the Supreme Court.
The doctrine of apportionment is in no wise applicable. The income involved arose entirely from sources within the state. Hence there is nothing to apportion between Indiana and other states.
I think the judgment should be affirmed.