Atchison, Topeka & Santa Fe Railway Co. v. Bair

CARTER, Justice

(concurring specially).

Although I cannot accept the court’s reasoning as to why the railroad fuel tax is violative of 49 U.S.C. section 11503 (b)(4), I agree that it is. I therefore concur in the result.

I do not find the court’s comparison of the railroad fuel tax with other taxes levied incident to truck, barge, and air transportation to be helpful for purposes of applying section 11503(b)(4). The comparison which is made by the majority is based on supposed competitive disadvantage. Although the elimination of competitive disadvantage may have been one of the legislative purposes for the enactment of the statute, competitive disadvantage is not a practical standard by which to determine whether a tax is discriminatory. Too many variables are involved to make such comparisons meaningful.

*349 I do not believe it would be possible under the test laid down by the majority to sustain any tax whose burden falls on interstate rail carriers if the incident of taxation differs from that employed in taxing other commercial taxpayers. I do not believe it was the intent of Congress to prohibit special tax treatment of interstate rail carriers under section 11503(b)(4) if the tax is tied to benefits which are conferred on interstate rail carriers. Where, however, a tailored tax on the activities of interstate rail carriers is placed in a separate fund to be expended for specific purposes, the carriers protected by section 11503(b)(4) must receive from that fund benefits which are proportionate to the tax imposed. In the present case, while some individual carriers may benefit from the use made of Iowa’s railroad fuel tax, any benefits flowing to interstate rail carriers as a class are too tenuous to stave off the carrier’s section 11503(b)(4) challenge.