# United States v. District of Columbia

> Court of Appeals for the D.C. Circuit · November 17, 1981 · 669 F.2d 738

URL: https://www.frixlaw.com/law-library/cases/9468834

## Case

- **Full name:** UNITED STATES of America v. DISTRICT OF COLUMBIA, Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** November 17, 1981
- **Citations:** 669 F.2d 738; 29 Cont. Cas. Fed. 82,032; 215 U.S. App. D.C. 352; 1981 U.S. App. LEXIS 15960
- **Precedential status:** Published
- **Opinion:** Concurring in part by MacKINNON
- **Judges:** Bazelon, Ginsburg, MacKINNON
- **Cited by:** 16 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/9468834

## How later opinions describe it (automated extraction)

- noting that the legislative history made it clear that “Congress intended to place the District [of Columbia] on an equal footing with the states.”

## Opinion text

MacKINNON, Circuit Judge
(concurring in part and dissenting in part):
I concur in the majority opinion insofar as it holds that the district court had subject matter jurisdiction, but dissent from the conclusion that the District of Columbia sales tax was properly levied on the hotel accommodations in question. These accommodations, consisting of meeting rooms, sleeping rooms, and meals, were furnished directly to the government and to the participants who were invited by the United States to attend the White House Conference on Balanced National Growth and Economic Development at the expense of the United States. In my judgment the majority fails to recognize the fundamental fact that the transaction here was one involving the government, directly and through the acts of its agents, as a party to a sale.
When the concrete facts of this case are considered, it becomes clear that the District of Columbia has levied a tax the legal incidence of which is upon the United States government. The record shows, and no amount of logic can deny, that Courtesy was here acting purely as the government’s agent. The Conference, and implicitly the purchase of hotel accommodations with which we are here concerned, was first au *749 thorized by a specific Act of Congress. Then, in direct dealings between the United States (i.e., the Department of Commerce) and the Sheraton-Park Hotel (Hotel), the principal details of the Hotel accommodations were agreed upon. Only after this initial agreement did the Department of Commerce (Commerce) and Courtesy, Inc., (Courtesy) enter into a “management and logistics” contract to follow up on the arrangements already made between Commerce and the Hotel and to furnish certain additional services as needed by the Conference. Courtesy, negotiating openly on behalf of the United States operating as the “White House Conference” (Conference), then made the final arrangements for the necessary hotel accommodations. See United States v. Livingston, 179 F.Supp. 9, 22 (E.D.S.C.1959) (three judge court), aff’d per curiam, 364 U.S. 281 , 80 S.Ct. 1611 , 4 L.Ed.2d 1719 (1960). Thus, insofar as the hotel accommodations were concerned, the contract with Courtesy merely adopted the principal arrangements for the Conference previously agreed upon between the Hotel and the “White House Conference” acting through an official of the Department of Commerce who was charged with getting the Conference under way. I would hold that the hotel accommodations were exempt from the D.C. sales tax as a “sale[ ] to the United States” under D.C.Code § 47-2605(a) (1973), recodified as § 47-2005(1) (1981) and affirm the judgment of the district court.
The District of Columbia Code provides that gross receipts from “[sjales to the United States” are exempt from the sales (gross receipts) tax. D.C.Code § 47-2605(a). The regulations under this statutory exemption for sales to the United States state more specifically:
Part 203 Exempt and Nontaxable Sales. Sec. 203.1 — -Exempt and Nontaxable Sales — Gross receipts from the following sales shall be exempt from the tax imposed by the Act.
(a) Sales to the United States or the District or any instrumentality thereof. For the purposes of this exemption, vendors may treat as nontaxable the receipts from, and shall be relieved from the duty of collecting their reimbursement for tax on, sales to the United States ... on any purchase order made by any authorized purchasing officer or by contract in which ... the United States . . . or any instrumentality [thereof] ... is a party.
16 D.C.R.R. § 203.1 (emphasis added).
The majority holds that these provisions state an exemption from the D.C. sales tax no broader in scope than the immunity afforded by the Constitution itself. The very structure of the majority’s analysis — reaching the constitutional issue before deciding the question of statutory interpretation— anticipates the problems it soon encounters. For by imposing its novel constitutional analysis upon the case before treating the statutory exemption, the court poses the statutory question in a way that assumes its conclusion.
The entire statutory analysis is cast solely in terms of whether the D.C. Code provision is “coextensive” with the majority’s reading of the constitutional scope of tax immunity. The majority first holds that the constitutional immunity extends only to contractors “specifically designated” as purchasing agents; second, it holds that the D.C. Code must be read as simply codifying the constitutional rule. It then deduces that the Code must therefore exempt only sales to “specifically designated” agents. This tidy syllogism simply begs the question of how the D.C. Code could have enacted a gloss on the Constitution that no court has ever— until today — accepted.
I would follow the wise custom of deciding the statutory question before reaching out to consider an issue of constitutional magnitude, and hold that the statute here exempts this transaction from the D.C. gross receipts tax. The record shows that the transaction in question here was a “sale to the United States” under the statute. The facts demonstrating that Courtesy was a “purchasing agent” within the regulation interpreting the statutory exemption are discussed in some detail below. However, *750 because the court chooses to cast its statutory analysis in terms of the “coextensiveness” of the constitutional and statutory provisions, it is first necessary to show that the Constitution does not compel the restrictive reading of the statutory exemption adopted by the majority.
I
The majority’s theory of constitutional tax immunity rests upon the premise that “in view of the potential impact on the revenue bases of the states, the judgment [to confer tax immunity] should be made by the national legislature,” not by the executive branch. At 744. Congress, it stresses, must be left “free from . . . executive intrusion” in determining whether a state’s (here, the District’s) power to tax is to be subordinated to particular federal interests. Id. at 743. This theory, whatever its merits in the abstract, is plainly an inaccurate (or, if accurate, then an incomplete) description of the law, as an examination of the relevant Supreme Court precedents makes evident. In its attempt to remedy the flaws in its analysis, the majority produces a rule of decision that is at odds with the law and logic of controlling Supreme Court doctrine.
The court begins by positing, without offering any support in law, 1 a theory of exclusive congressional authority in the area of tax immunity. Unless and until Congress has itself positively conferred tax immunity, runs the theory, the courts are powerless to conclude that a state tax levied against a government contractor is one upon the government. The majority’s initial premise, then, takes the form of a constitutionally mandated “bright line” drawn to protect the exclusive authority of Congress to decide which federal activities are to be afforded immunity from state taxation.
The majority then declares that this “bright line” is a function of the legal incidence of the state tax involved, legal incidence being the established constitutional litmus for immunity. At 744. While this conclusion may appear to state the law of tax immunity as declared by the Supreme Court, the inadequacy of the majority’s explanatory theory is readily apparent from its efforts to reconcile those decisions with the analytical framework it has created from whole cloth. The court, in attempting to reconcile the case of Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110 , 74 S.Ct. 403 , 98 L.Ed. 546 (1954), is forced to depart significantly from the foundation of its analysis.
In Kern-Limerick, the government contractor was given contractual responsibility to “handle all payments” to suppliers. 347 U.S. at 119 , 74 S.Ct. at 409 . Consequently, it appeared to be, under the applicable state law, the party upon whom the legal incidence of the gross receipts tax there involved fell. 347 U.S. at 111 , 74 S.Ct. at 405 . The Court, however, held that the Constitution prohibited the tax from being levied upon the contractor. Its reasoning was that since the federal contract explicitly provided that the United States was to be “obligated” to perform its contractor’s duties, the contractor was acting merely as the government’s purchasing agent; the incidence of the tax, therefore, actually fell upon the United States as principal. Attempting to reconcile this result with its own general theory of immunity, the majority lays down the narrowest possible rule that will cover the case. It is that in instances in which the contractor is “explicitly designated by the federal contract as an agent with authority to pledge the credit of the United States,” the incidence of the tax paid by the contractor shall be deemed to fall on the United States. At 744. Since the contract between the government and Courtesy in the present case contains no *751 such “explicit designation” of Courtesy as an agent, the majority concludes, the tax’s incidence here was not upon the government.
The majority asserts that its new “explicit designation” rule is compelled by the Constitution. But to the contrary, the cases show without question that the Constitution compels no such “explicit designation” rule at all. The proof of this is found most readily in Kern-Limerick itself.
There, it was the language of a contract drafted by the executive branch which determined the applicability of the constitutional immunity from state taxation. While this holding is certainly consistent with the majority’s announced rule that “explicit” contractual designation can confer immunity upon a government contractor, at the same time it makes plain that the power to confer that immunity is not one that must be exercised by Congress itself. Rather, it is one that may be exercised by the executive branch in the course of carrying out congressionally authorized government objectives. The question is not simply what the contract says; it is what Congress has said it may say.
To hold that Congress’ power with respect to tax immunity may be exercised by the executive is not to say that immunity may be conferred “by the stroke of the draftsman’s pen.” United States v. Township of Muskegon, 355 U.S. 484, 487 , 78 S.Ct. 483, 485 , 2 L.Ed.2d 436 (1958). On the contrary, it is the majority’s approach that would seem to me to “permit any government functionary to draw the constitutional line by changing a few words in a contract.” Kern-Limerick, 347 U.S. at 126 , 74 S.Ct. at 412 (Douglas, J., dissenting), quoted in At 744 n.8. It is rather only to state the rule, apparent from numerous Supreme Court decisions, that it is the legal substance of the relationship between the government and its contractor, rather than its contractual form, that defines the constitutional “line” between immunity from and liability for state taxes. “[T]he duty rests on this Court to decide for itself facts or constructions upon which federal constitutional issues rest.” 347 U.S. at 121 , 74 S.Ct. at 410 .
Just as “[c]onstitutional immunity from state taxation does not rest on such insubstantial formalities as whether the [contractor] using government property is formally designated a ‘lessee,’ ” United States v. Township of Muskegon, 355 U.S. at 486 , 78 S.Ct. at 485 , 2 the formal designation (or lack thereof) of Courtesy as a “purchasing agent” cannot simply dispose of the question of whether the tax’s incidence falls upon the government. Such designation may perhaps be a sufficient condition for so finding, 3 but it is not, in my opinion, a necessary one. The Constitution not only permits but requires us to determine on the basis of all the facts in the record whether a government contractor is indeed an agent of the government to the extent that a tax levied upon it is one falling upon the government itself. “In determining whether these taxes violate the government’s constitutional immunity, we must look through the form and behind labels to substance.” *752 City of Detroit v. Murray Corp., 355 U.S. 489, 492 , 78 S.Ct. 458, 460 , 2 L.Ed.2d 441 (1958). 4
The majority is of course aware that the principle of exclusive congressional authority must be tempered in order to permit the executive sufficient room to carry out Congress’ directives. It offers “explicit designation” as a rule by which the courts are to gauge whether the executive has exceeded the bounds of its authority, apparently in accordance with the view that “jwjhile Congress may confer immunity with a word, an executive agency must clearly manifest the principal-agent relationship with all its ramifications” if immunity is to be found. United States v. New Mexico, supra, 624 F.2d at 121. I have little quarrel with the principle thus stated. But the majority would make “explicit designation” the sole test for evaluating the executive’s use of its authority. For me, a “clear manifestation” can emerge, as it does here, equally well from the acts of the parties to a contract as from the language they employ.
Where there is serious doubt as to whether the government’s immunity is sought to be improperly conferred on the private activities of a government contractor, the majority’s “bright line” can serve to ensure that private interests do not enjoy a privilege which only the government may enjoy. However, just as the mere presence of such language cannot conclusively resolve such doubts in favor of immunity where it is clear that a contractor does not act as the government’s agent, its absence should not lead mechanically to the conclusion that immunity is inapplicable. In short, where all the factual circumstances of a case make it plain that the incidence of a tax is upon the government, the relevant “bright line” has already been drawn by those facts. Affirmative contractual language may tend to buttress a conclusion that immunity is applicable, as it did in Kern-Limerick, just as negative language may support the opposite inference. 5 But I simply cannot see any justification for permitting the absence of plain contractual language to reverse a conclusion otherwise compelled by the plain facts of the case.
The Supreme Court’s decisions in this area at once deny that form governs over substance in determining the legal incidence of a tax and establish that the executive may be empowered to carry out the business of government by electing or declining, as it sees fit, to appoint contractors as agents of the government. See Kern-Limerick, 347 U.S. at 114 , 74 S.Ct. at 406 (under act of Congress so providing, Navy could “use agents other than its own official personnel, to handle the detail of purchase” (emphasis added)). Such decisions, when they are made within the contours of applicable congressional directives, pose no threat to the constitutional “mediating role” of Congress in reconciling state and federal interests. They are properly viewed as falling within the scope of the executive’s authority to implement the laws. “When there is no prohibition of a particular type of contract and no direction to use a particular type, the contracting officers are free to follow business practices.” Id. at 116 , 74 S.Ct. at 407 .
In the instant case, far from there being a specific congressional “prohibition” or “direction” regarding the contracts to be let in arranging the Conference, we have a specific congressional command to the President to call the Conference and to
use appropriated funds and act as may be necessary and appropriate without regard to the provisions of section 551 of Title *753 31, U.S. Code, section 34 of Title 40, U.S. Code and section 5, Title 41 U.S. Code. 6
Pub.L. 95-31 § 202 (d), 91 Stat. 170 (1977) (emphasis added). 7 Congress’ request to the President to call the Conference, and its grant of authority to use appropriated funds and act as may be necessary or appropriate without regard to statutory provisions that normally restrict the executive in the means it may employ to carry out acts of Congress in awarding government contracts, 8 leave no doubt about the authority of the Department of Commerce to enter into all “necessary and appropriate” contracts for the Conference, including the one with Courtesy. 9 Under the legislation authorizing the Conference, Commerce was “free to follow business practices,” Kern-Limerick, 347 U.S. at 116 , 74 S.Ct. at 407 , including the retention of Courtesy as its agent. The majority’s claim that a finding of immunity would somehow threaten Congress’ power in the immunity field is entirely undermined by this evidence showing that Congress specifically chose to delegate its power to the capable discretion of the President. One need not argue with the majority’s view that tax immunity is “an area best left to congressional control,” At 744, to conclude that here, Congress has in the interest of expediency explicitly relinquished its control over the Conference.
In short, there is no reason to suppose that Congress’ authority must be preserved against Congress’ own decision to delegate that authority. The majority’s “bright line” ultimately serves only to create a dilemma: either it would, in the name of exclusive congressional authority, place unreasonable limits upon Congress’ ability to pursue its policies by granting the executive the power independently to make contracts naming agents; or it would permit the executive unfettered discretion to create tax immunity simply through a “stroke of the draftsman’s pen” expressly naming a contractor as an agent. The “explicit designation” rule would compel the adoption of one or the other of these alternatives, neither of which is the law of the land. The proper middle course is steered by an analysis which focuses upon the degree of discretion vested in the executive by Congress, and, finding such discretion, upon the relationship between the government and its contractor established by the factual circumstances.
Having concluded that Congress here intended the President to have broad authority over the conduct of the Conference, I proceed to consider whether Courtesy acted as the agent of the government under its contract.
*754 II
The nature of the immunity question does require the initial application of principles beyond those traditionally governing the question of agency. United States v. New Mexico, supra, 624 F.2d at 116. What the majority fails to recognize is that once the constitutional question of the executive’s authority to invoke immunity from state taxation is established — as it is here by the Act’s authorizing the President to organize the Conference free from normal constraints on the letting of government contracts — the question of whether the executive has in fact created an agency relationship can be decided by reference to the traditional principles of the law of agency. The majority conflates these two inquiries by imposing a constitutional litmus — does the executive have authority from Congress — upon the nonconstitutional question of whether that authority has been exorcised.
Nothing in the majority’s basic premise of congressional control over the invocation of immunity requires a rule that the immunity can be conferred only by explicit contractual language creating an agency relationship. 10 I am compelled to suggest that it is the ultimate fact of the contractor’s agency, and not the mere form of its contract with the government, that is determinative. The record in this action presents a compelling case for the conclusion that Courtesy did act as the government’s purchasing agent, and consequently that the transaction was exempt as a “sale to the United States.”
The organization of the Conference was delegated to the Department of Commerce, and its officials promptly proceeded to negotiate for a Conference site. Prior to September 1, 1977, the active officials of Commerce selected the Sheraton-Park Hotel as the site of the Conference. Stampfli Aff. ¶ 3 (App. 57-58). These early negotiations between representatives of Commerce and the Hotel settled upon the dates of the Conference, the number and nature of meeting and sleeping rooms and meals that would be necessary, and the cost of most of the items — in short, upon most of the essential terms that any contract for the Conference would contain. The Hotel then requested Manolatos, who was in charge of the Conference at Commerce, to sign a copy of the Hotel’s August 2, 1977 “letter of agreement.” 11 The record does not disclose whether Manolatos signed and returned a copy of this letter. It does show equivalent acceptance by his answering letter of August 11,1977, in which Manolatos responded to the Hotel, stating:
We are pleased to confirm our understanding of the agreement reached to date between the White House Conference on Balanced National Growth and Economic Development and the Sheraton Park Hotel. [This characterizes an agreement as having been reached between the Hotel and the “White House Conference.”]
It is our intent that the Conference will be held at the Sheraton Park Hotel from January 28 through February 2, 1978. Meeting rooms and accommodations are reserved and available for the Conference as specified in correspondence from the Sheraton Park Hotel, dated June 15, July 7, July 22, and August 2, 1977, with the addition of the availability of the Sheraton Park ballroom until 5:00 p.m. on February 2, 1978. [This indicates substantial agreement].
We are currently working with our Procurement Division to develop a contract for Conference management and logis *755 tics, which will incorporate the items specified in your correspondence to us, the accommodations and meal costs, services to be provided by the hotel, and other items to be clarified within the next few weeks.
(App. 75) (emphasis added). The agreement as to dates also implicitly blocked out the number of bedrooms necessary to serve the intended number of invitees.
As contemplated by Commerce and the Hotel (App. 74), a contract was subsequently entered into on September 30, 1977 between Commerce and Courtesy. That contract had the purpose of simply “firming up and arranging for all Conference goods, services and facilities, including the negotiating and firming up of prices and quantities of space and food being procured from the Sheraton Park.” Tyler Aff. ¶ 5 (App. 69) (emphasis added).
Thus, as stated above, the broad outline of the hotel services for the Conference and its participants were worked out between the Hotel and the representative of the Department of Commerce before the government entered into its contract with Courtesy. That contract, entered into on September 30, 1977, was backdated to an effective date of September 16, 1977. It also incorporated the earlier arrangements between Commerce and the Hotel and indicated, insofar as the arrangements with the Hotel for rooms and meals were concerned, that the parties intended to ratify the earlier contractual arrangements between the Hotel and the “White House Conference:
“3. Post-Conference
Post-Conference activities of the Contractor will include, but not necessarily be limited to, the following:
a. Hotel
Complete all arrangements for payment to hotel having determined the satisfactory completion of their contract with the White House Conference.”
(App. 91) (emphasis added). The word “their” refers to the Hotel since “hotel” is the last (indeed, the only) antecedent. Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975); Quindlen v. Prudential Insurance Company of America, 482 F.2d 876, 878 (5th Cir. 1973); Mandina v. United States, 472 F.2d 1110, 1112 (8th Cir.), cert. denied, 412 U.S. 907 , 93 S.Ct. 2299 , 36 L.Ed.2d 972 (1973); United States v. Pritchett, 470 F.2d 455, 459 (D.C.Cir.1972). This reference in the contract between Courtesy and the Hotel therefore adopts the provisions of the prior agreement reached by the Hotel and Commerce.
On January 3, 1978, Courtesy “confirmed the arrangements for the procurement for the space and food” that had been reached, prior to Courtesy’s contract, between the officials of Commerce and the Sheraton-Park. (App. 58, ¶¶ 3, 4, 6). If there were any doubt about the terms of the contract between the Hotel and Commerce, acting for the United States as the “White House Conference,” the contract between Commerce and Courtesy ratifies that arrangement. But more important, that ratification indicates that Courtesy was acting as an agent for Commerce. The majority seek to avoid this interpretation and the clear implications of the reference to the Courtesy contract as the “contract with the White House Conference,” but, in addition to the reference in the contract, to the extent that there is any additional record evidence it also indicates that goods and services were billed to the “White House Conference”— not to Courtesy. (App. 61-62). The contract with Courtesy also expressly incorporated the dates and much of the agenda for the Conference that had been previously negotiated by Commerce personnel (App. 71-72, 82-83) and implicitly adopted the agreements on rooms for meeting and housing and feeding guests (App. 69, 82-84).
An important fact distinguishing this case from the typical case in which immunity is found lacking in the absence of an explicitly created agency relationship is the subject matter of the contract involved. The contract here was essentially one for the provision of services rather than for the transfer of materials or other tangible prop *756 erty. 12 The hotel offered accommodations and accompanying support staff, on terms which had already been worked out between the hotel and the government. The contract is thus distinguished from those at issue in King & Boozer (contract for sale of building materials), United States v. New Mexico (contract for “long term” management of AEC facility vested “substantial autonomy” in contractor, and Harvey F. Gamage, Shipbuilder, Inc. v. Halperin, 359 A.2d 72 (Me.1976) (contract for construction of private fishing vessel), in which the courts found that immunity was unavailable.
As the court pointed out in United States v. Livingston, supra, the principal concern in such cases involving tangible property is that the contractor may make use of the property for purposes other than the government’s benefit. “The vital thing” in cases denying immunity has been that the contractors used government property for the pursuit of private commercial purposes unrelated to the government contract. United States v. Township of Muskegon, 355 U.S. 484, 486 , 78 S.Ct. 483, 485 , 2 L.Ed.2d 436 (1958). See, e.g., Harvey F. Gamage, Shipbuilder, Inc. v. Halperin, supra (even though contract directly obligated United States to pay costs of constructing ship, immunity did not attach because ship was used in private commercial enterprise). A private party may not enjoy the immunity lawfully available only to the government. Hence, the presence of contractual terms ensuring that the government is the exclusive beneficiary of the immunity — as where the contractor is a mere agent of the government — has been strongly persuasive of the existence of immunity. But where, as here, the subject matter of the contract makes it certain that the government is the only party who can receive the benefit of what it purchases, there is likewise little need to worry that the contractor has appropriated the government’s immunity. The substance of the contract, in short, can be just as persuasive as its explicit terms. “An agent . . . need not be called by that name to be one.” United States v. Livingston, supra, 179 F.Supp. at 22 .
The majority opinion attempts to place this case in the context of the construction contracts entered into by the United States that were involved in Alabama v. King & Boozer, 314 U.S. 1 , 62 S.Ct. 43 , 86 L.Ed. 482 (1941) and Kern-Limerick, Inc. v. Scurlock, supra. These eases turned respectively on whether the government was “obligated to pay” for lumber and whether a contractor was “authorized to pledge the credit of the United States.” But both of those cases involved construction contractors and items of tangible personal property which were purchased in connection with the projects, and hence present the agency question in a significantly different form. The contract here is essentially a service contract and none of the items that are alleged to be subject to the D.C. sales tax, rooms and meals, were delivered to the contractor (Courtesy).
A particularly useful comparison is furnished by United States v. Township of Muskegon, supra, 355 U.S. 484 , 78 S.Ct. 483 , 2 L.Ed.2d 436 (1958). There, a contractor using the government’s property for its own commercial purposes as well as for performing a government contract was held unable to invoke the federal government’s immunity. The Court noted that “[t]he case might well be different if the Government had reserved such control over the activities and financial gain” of the contractor that the contractor could have been deemed a “servant.” Id. at 486 , 78 S.Ct. at 485. In the context of a contract for the provision of services to the government contractor like the one involved in this case, the government without question retains “control” of its “property” to an extent that makes it *757 clear where the incidence of the tax falls. See United States v. Livingston, supra, 179 F.Supp. at 23 . The nature of the contract as one for services, then, more readily supports the inference that the contractor here was acting merely as the government’s agent.
According to the majority, deviation from its “explicit designation rule” is permitted only in instances where a government contractor performs its services gratuitously. At 745 (discussing United States v. Livingston, supra). This is another instance of cutting the rule closely to fit the case law without regard for the broader principles those decisions sought to serve. Simple citation of the Supreme Court’s obiter dictum in United States v. Boyd, 378 U.S. 39 , 84 S.Ct. 1518 , 12 L.Ed.2d 713 (1964), for the view that the analysis in the Livingston case is confined to “extraordinary” factual situations does not suffice to explain the majority’s apparent adoption of the view that the amount of a contractor’s profit, or the patriotic nature of its motives, is dispositive of the constitutional question it poses.
In point of fact, Boyd was limited to the question of whethér a government contractor could be held to be a purchasing agent in the context of a state tax directly on contractors, not upon sales. The Court explicitly stated that question of immunity from that levy, which taxed the business of contracting, was unconnected with the question of whether the contractor was an agent of the government. The Court therefore did not consider the Tennessee Supreme Court’s holding, 211 Tenn. 139 , 363 S.W.2d 193 (1962), that the contractor was immune as a purchasing agent. The majority’s reliance on and quotation of Boyd is therefore misplaced.
The terms of the contract between Courtesy and the Hotel were negotiated in advance by Commerce leaving virtually no room for Courtesy to exercise any independent discretion over how the services would be provided. 13 Under the terms of its agreement with Commerce, Courtesy was acting only to “firm up” arrangements already made. For the purposes of those arrangements, then, it was, under traditional agency principles, the government’s agent. Restatement (Second) of Agency § 14N (1958). 14
In addition to not receiving any of the services that are here sought to be taxed in its name, Courtesy had “no role whatsoever” in determining who was to occupy the rooms or consume the food furnished by the Hotel. These decisions were at all times reserved to the officials and employees of the United States, and withheld from Courtesy. Tyler Aff. (App. 70). Its sole relationship to those logistical items (rooms and meals) was limited to overseeing the furnishing of same to the Conference and its participants — within the $40 and $30 contract limitations on rooms and meals (App. 93) — checking the final Hotel bill, and, after the United States had checked the bill and approved it, paying the approved amount to the Hotel. (App. 70). It was then reimbursed by the United States. Courtesy thus ran no practical risk in paying the Hotel bill. Throughout it was practically a servant of the United States, whose task it was to handle the “detail[s] of purchase.” Kern-Limerick, 347 U.S. at 114 , 74 S.Ct. at 406 . 15 The principal decisions and arrangements with respect to the hotel accommodations were made by Commerce before it entered into the contract with Courtesy and the contract strictly limited Courtesy’s au *758 thority with respect to the items upon which Commerce and the Hotel had previously agreed (App. 91).
In other words, the contract made Courtesy the chore boy for the Conference. Its authority was specifically and strictly limited by the contract; with respect to rooms and meals it was nothing more than an agent of the Commerce Department. It acted only as a supervisor or purchasing agent for the government to see that rooms and meals which had been preliminarily agreed upon between Commerce and the Hotel were furnished to the guests who had been invited by the government. 16 The number of rooms and meals had been agreed upon; Courtesy selected the menu within the contract’s price restriction. Id.
In my view the above facts with respect to the rooms and meals constitute, under the contract, a sale to the United States — if not a direct sale, then a sale to the United States on a purchase order made by an authorized purchasing officer.
Ill
In view of the foregoing it is not necessary to determine whether the negotiations between the Sheraton Park and the Commerce Department resulted in a contract for hotel services or whether such a contract was consummated only after Courtesy became a participant in the transaction. In either event, Courtesy had no discretion in determining the dates and place of the Conference and who would provide the meeting rooms, food, and lodging for the Department’s Conference and who would be the recipients thereof. This is in distinct contrast to the situation in which a contractor agrees to provide some service or product for the government, such as a building, and in the course of performing his obligations purchases lumber and machinery for his own use. Indeed, Courtesy’s payment for the Hotel services is distinguishable from a purchase it may have made of, for example, name identification tags for the Conference participants. Courtesy would probably not be a purchasing agent for the United States with respect to such a purchase. But where it is contractually obligated to make payment for hotel services already substantially arranged and confirmed by officers of the United States, the situation is distinguishable in a material respect. Where a federal contractor merely oversees the provision of goods and services to the United States, he acts as an agent for the United States and there is no basis for taxing what are, essentially, direct sales to the United States. In such case, the United States is the purchaser. 17
*759 The United States was clearly disclosed at all times as the real party in interest. Under the D.C. Code and the applicable Regulation, set forth above, the hotel accommodations were a “sale[ ] to the United States” through its agent. Such was the intent of the parties in referring to the “[Hotel’s] contract with the White House Conference.” 18 All the rooms and meals that were furnished to Conference participants as guests of the United States and the larger rooms in which the Conference meetings were conducted constituted essentially a sale to and use by the United States. There is absolutely no question whatsoever that the meeting rooms and services relating thereto were a direct sale to the government (App. 65).
In reaching the above conclusion, I cannot escape the plain words of the statute and assert, as the majority does, that D.C. Code § 47-2605 (a) and its accompanying regulation should not be given their plain meaning because Congress in enacting the legislation did not “focus specifically” on federal tax immunity and that the exemption allegedly did not receive the “focused scrutiny of Congress.” At 745-746. That would be a novel doctrine of statutory interpretation. The Supreme Court has cautioned that it is treacherous to find in congressional silence alone the adoption of a controlling rule of law. Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 241 , 90 S.Ct. 1583, 1587 , 26 L.Ed.2d 199 (1970); Girouard v. United States, 328 U.S. 61, 69 , 66 S.Ct. 826, 829 , 90 L.Ed. 1084 (1946). The exemption provisions are so plain that no discussion or elaboration was necessary. If statutory provisions setting forth a perfectly obvious legislative intent were to suffer because they were not debated in committee or on the floor the clearest and most basic provisions of every statute would fall.
To the extent above indicated I therefore respectfully dissent.
. In this regard it is interesting to note that Professor Tribe, upon whom the majority places principal reliance, willingly concedes that existing authority flatly contradicts the theory of immunity put forth by the majority. See L. Tribe, American Constitutional Law, § 6-30 at 398 (1978) (Kern-Limerick decision, discussed infra, must be overruled under majority’s theory). It bears repeating that sitting judges do not enjoy the fiat over Supreme Court precedent so readily exercised by their academic brethren.
. In Muskegon, the Court found that the government contractor there was in fact free to use government property for its own commercial purposes. It thus looked beyond the formal terms of contract to inquire into the actual relationship between the government and the contractor. In contrast to that case, the facts here show that Courtesy was clearly acting in an agency capacity. See Part II infra.
. Were a case to arise in which the federal contract “specifically designated” the contractor an agent when the acts of the contractor plainly revealed it to be acting in pursuit of its own commercial interest, see note 2, supra, it would be necessary to decide whether the language of the contract could be held to define the constitutional dimensions of immunity. Justice Frankfurter expressed the view that in such a case, “it is immaterial that contracts by the Government have been purposefully drawn so as to [confer tax immunity].” City of Detroit v. Murray Corp., 355 U.S. 489, 499 , 78 S.Ct. 458, 488 , 2 L.Ed.2d 441 (1958) (Frankfurter, J., concurring) (emphasis added). Since that situation is not presented here, it is not necessary to reach the question of whether the terms of a contract may by themselves confer an immunity that would otherwise be lacking.
. “In this domain,” wrote Justice Frankfurter, “it is asking too much for rules of certainty and simplicity in application that are hardly to be found in any live branch of law.” City of Detroit v. Murray Corp., 355 U.S. at 496, 78 S.Ct. at 486 (Frankfurter, J., concurring). That is precisely the request the majority makes in propounding its “explicit designation” rule, a rule the rigidity of which does not, in my opinion, serve the true constitutional purposes of federal immunity from state taxation.
. See, e.g., United States v. Forst, 442 F.Supp. 920, 924 (W.D.W.Va. 1977), aff'd, 569 F.2d 811 (4th Cir. 1978) (per curiam).
. The three statutory exemptions referred to removed, respectively, the prohibition upon the use of federal money for lodging, feedings, conveying or furnishing transportation to conventions; a restriction upon the rental of buildings within the District of Columbia; and a requirement that government purchases of or contracts for supplies be publicly advertised.
. The breadth of the authority Congress sought to confer on the President is made still more evident when the history of this measure is considered. Originally, Congress requested the President to call the Conference within one year of the authorizing legislation, and granted him various powers in order to carry out that request. Pub.L. No. 94-487, 90 Stat. 2331, 2339-40 (1976). Subsequently, however, Congress found it necessary to extend the preparation period, and to broaden the President’s authority by inserting the “act as may be necessary and appropriate” language into the legislation. The conclusion to be drawn is that Congress consciously chose to grant the President exceptionally broad discretion in calling and conducting the Conference as expeditiously as possible. That vested discretion must be read to include the power to appoint agents such as Courtesy.
. The statute is in this respect closely similar to the one involved in Kern-Limerick. See 347 U.S. at 113 n.3, 74 S.Ct. at 406 n.3.
. Besides the removal of restrictions in the second Act quoted in text, the original enabling Act also suspended the application of a statutory restriction on government contract awards, relating to the employment of personnel in the competitive civil service. Pub.L. No. 94-487 § 202 (5), 90 Stat. at 2340 (1976). A suspension of the otherwise applicable requirement that the President rely on civil service personnel is strongly indicative of Congress’ intent to grant him a free hand in employing private parties as agents of the government for the purposes of organizing the Conference.
. Indeed, the majority’s theory would be better served by requiring simply that government contracts carry the legend “immune from taxation.” If such a rule would equally well realize the majority’s goal of preserving congressional authority in this area, then I fail to see why facts otherwise clearly establishing the existence of an agency relationship must be disregarded.
. Id., Tyler aff. and exhibits. See Letter of August 2, 1977 from Hotel to Assistant Director for Conference Operations Mr. Jerry Ma-natolos: “This letter of agreement between us commits the dates, the room blockage, and complimentary policy.” App. at 74.
. The hotel accommodations were only one part of the Courtesy contract constituting about one-third of the total cost. In addition Courtesy agreed to perform numerous chores for the Conference: furnish clerical and secretarial support, cash invitees’ checks, arrange walkie-talkie communications, prepare signs, provide security, photocopy service, maintain pressroom, local transportation for invitees, arrange hospitality activities, and the like (App. at 84-91).
. Compare United States v. New Mexico, 624 F.2d 111, 114 (10th Cir. 1980) (contracts for management services contemplate “long-term relationships and vest substantial autonomy in the contractors”), cert. granted, 450 U.S. 909 , 101 S.Ct. 1346 , 67 L.Ed.2d 332 (1981).
. It is not inconsistent with an agency relationship that the agent has the legal status of independent contractor. Restatement (Second) of Agency § 14N, comment a (1958).
. The case is thus quite unlike United States v. Forst, 442 F.Supp. 920 (W.D.Va.1977), aff'd, 569 F.2d 811 (4th Cir. 1978). In that case, the contract specifically stated that the contractor acted “as an independent contractor and not as an agent of the Government ...” Id. at 924 (emphasis added).
. It firmed up the details with the Hotel as to quantity and prices. In the matter of prices its authority was limited by the $40 and $30 limits set in the contract and the quantity of food was reduced to practically a mathematical calculation controlled by the number of participants invited by Commerce to attend. The Stampfli Affidavit states:
11. After the contract was signed, Courtesy actively participated in negotiating and firming up the procurement of the space and food contemplated by the contract working out with the Sheraton-Park the particulars as to quantities and types of food to be procured (and the prices therefor) and the nature, type and number of rooms and meeting facilities to be provided (and the prices therefore).
(App. 59).
. The record here evidences the mutual assent necessary to the formation of a contract between the United States acting through Commerce as the “White House Conference.” In conducting the Conference the agency was specifically authorized by statute to “act as may be necessary and appropriate without regard to the provisions” of the statute requiring the advertising for bids. Whether the special Act, under which this Conference and the attendant contracts came into being, was sufficient to constitute a completely valid contract, as to the matters agreed upon by the Hotel and Commerce, under all other government contract restrictions and regulations, is not clear. See J. McBride & T. Touhey, Government Contracts § 4.40 (1978). However, it is not necessary to decide this issue, because whatever deficiencies may have existed were cured by the provisions in the formal contract between Commerce and Courtesy. These negotiations and their result are important because they shed light on the nature of the authority that was being conferred upon Courtesy. The recognition of the prior “contract” between the Hotel and Commerce, even if only a de facto contract, the very limited authority given Courtesy with respect to the rooms and meals, and the approval by Commerce of the amounts prior to payment by Courtesy, all indicate that with respect to the *759 hotel accommodations Courtesy was a mere agent of the United States.
. It is this “practical significance,” see At 754 n.10, which I find relevant to the present case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468834. Public record. Not legal advice.