Oklahoma Tax Commission v. City Vending of Muskogee, Inc.

SUMMERS, Justice,

with whom KAUGER, Justice joins, Dissenting;

In its final footnote the majority states that we need not determine if the OTC’s order is subject to a jurisdictional collateral attack, because no evidence was presented by City Vending to show that sales were made to Indians and Indian tribes. I must disagree. The order of the OTC stated that it was not disputed that City Vending sold cigarettes to Indians and/or Indian tribes. This being the case, we are directly confronted with a collateral attack on the jurisdiction of the OTC to tax those sales made to Indians or Indian tribes.

*115 The Federal Constitution, as interpreted in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, — U.S. -, 111 S.Ct. 905 , 112 L.Ed.2d 1112 (1991), forbids a state from taxing the sale of cigarettes made by a tribal smokeshop to an tribal member. Although the OTC is given, by statute, the jurisdiction over collection of taxes, this statutory grant of jurisdiction cannot exceed that which is allowed by the Federal Constitution.

As such, the collateral attack of the OTC’s order by City Vending presents a question of federal constitutional jurisdiction and should be addressed by this Court. The OTC lacks jurisdiction to tax the sales of tribal smokeshops to tribal members. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 157 , 100 S.Ct. 2069, 2083 , 65 L.Ed.2d 10 (1980). The OTC did not exempt these sales from taxation in its order, but instead lumped the two categories of sales — those to tribal member and those to non-tribal members — into one category and assessed a tax on the entire amount of sales. Because the OTC acted beyond that jurisdiction permitted by the Commerce Clause of the Federal Constitution, its Order is facially void. See Scoufos v. Fuller, 280 P.2d 720, 723 (Okla.1955).