Opposition Brief — American Trucking Assns., Inc. v. Smith

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No. 88-325 OCT 20 1988

3n the

Supreme Court of the United States

OCTOBER TERM, 1988

American Trucking Associations, Inc., et al.,

Petitioners

Maurice Smith, Director, Arkansas Highway

and Transportation Department, et al.,

Respondents

REPLY BRIEF TO

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

A.T. GOODLOE, II

Counsel of Record

ROBERT L. WILSON

Arkansas Highway and

Transportation Department

P.O. Box 2261

Little Rock, AR 72203

(501) 569-2271

JOE MORPHEW

Revenue Legal Counsel

P.O. Box 1272-L

Little Rock, AR 72203

JAY WILLS

Assistant Attorney General

200 Tower Building

Fourth & Center Streets

Little Rock, AR 72201

October 1988 Counsel for Respondents

TABLE OF CONTENTS

Page

TABLE OF CONTENTS Sah. ‘gers

TABLE OF AUTHORITIES .. Saat wis ii

a aetna ec Ten PT te ole og er,

REASON FOR REFUSING THE PETITION __. 3

I. ARKANSAS AND PENNSYLVANIA HAD

I WII ss ono Gus tiavcucccaevscees 3

II. THE LOWER COURT DECISION eae

III. PROSPECTIVE OVERRULING 5

1. Foreseeability of Scheiner See? 5

2. Retroactive Application |. | 6

3. Equitable Considerations 8

IV. REFUND DECISIONS _.. 4

IED ont wranys Geb enceness nae ...1

TABLE OF AUTHORITIES

Cases: Page

Armco Inc. v. Hardesty, 467 U.S. 638 (1984). 5, 9, 10

Ashland Oil, Inv. v. Rose, 350 S.E.2d 531

(W.Va. 1986), appeal dism'd for lack of

jurisdiction, 107 S.Ct. 1949 (1987)... 10

American Trucking Ass‘ns, Inc. v. Conway, 308

A.2d 408 (Vt. 1987) cert. denied, 107

S.Ct. 3262 (1987) ....... eS

American Trucking Ass‘ns, Inc. v. Gray, 108 S.Ct.

DOD. nnd ncvccthuteeeeee jennie =

American Trucking Ass‘ns, Inc. v. Gray, 295 Ark.

43, 746 S.W.2d 377 (1988) .......... er pe

American Trucking Ass‘ns, Inc. v. Scheiner, 107

+ ) eee, 3, 5, 7,

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263

(1984) ..... sobs sna “

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)

City of Little Rock v. Cash, 277 Ark. 494, 644

S.W.2d 229 (1982), cert. denied, 462 U.S. 111

Pe seus | x

Continental Trailways v. Director, 309

A.2d 769 (N.J. 1986) cert. dism'd

per stipulation 107 S.Ct. 1636 (1987) .. .

National Can Corp. v. Department of Revenue, 749

P.2d 1286 (Wash.), appeal dism'd and cert.

denied, 108 S.Ct. 2030 (1988) ......... |

Private Truck Council of America, Inc. v. New

Hampshire, 517 A.2d 1150 (N.H. 1986)...

Private Truck Council of America, Inc. v. New

Jersey, 534 A.2d 13 (N.J. 1987) .. .. ,

Private Truck Council of America, Inc. v.

Secretary of State, 503 A.2d 215 (Me.), cert.

denied, 476 U.S. 1129 (1986) _. e

4,11

5, 6, 10

ill

Ragan v. Venhaus, 289 Ark. 265, 711 S.W.2d

Ee ass 4

Sp. Sch. Dist. Ft. Smith v. Sebastian Co., 277

Ark. 326, 641 S.W.2d 702 (1982)...

Tyler Pipe Indus. v. Washington Dept. of Revenue,

co Sa

Statutes:

EES oy ee

Ark. Code Ann.

§ 27-35-203 (Repl. 1987).......

§ 27-35-205 (Repl. 1987)... 2 eee

§ 27-35-205 (Repl. 1988)... sit

§ 27-70-202 (Repl. 1987)... aoe

§ 27-70-203 (Repl. 1987)... sss

§ 27-70-206 (Repl. 1987)... Poe

Conn. Gen. Stat. Ann. § 12-487 (West 1983). _

Fla. Stat. Ann. §207.004(5Xd) (West Supp. 1986)

Ga. Code Ann. 40-2-111(1985)...

Ind. Code Ann. §6-6-8 (Burns Supp. 1986)... _-

Ky. Rev. Stat. Ann. 138.660(4)(7) (Baldwin

Me. Rev. Stat. Ann. tit. 29 § 2243 (Supp. 1985) __

Me. Rev. Stat. Ann. tit. 29 § 246-A (Supp. 1981)

Md. Trans. Code Ann. §13-423(a) (1984) .

Neb. Rev. Stat. §60-305.03 (1984)...

N.H. Rev. Stat. Ann. §260:53 (1982)... 6... 0-0 ee

N.J. Stat. Ann. §39:3-6 (West 1973) ......-----.-005-

N.J. Stat. Ann. §54:39A-10 (West Supp. 1986)........

Okla. Stat. Ann. tit. 47 §1120 (West Supp. 1985) ......

Pa. Cons. Stat. Ann. tit. 75,§2102 (Purdon 1981)... ...

Pa. Cons. Stat. Ann. tit. 75,§9901 (Purdon Supp.

SD Fis s os Pre Seer ey

Vt. Stat. Ann. tit. 23, §415, 3007, 3010 (Supp.

1982 and 1986) ................ pa

Vt. Stat. Ann. tit. 23, §417 and 3021

(Supp. 1982 and 1985) .

No. 88-325

3n the

Supreme Court of the United States

OCTOBER TERM, 1988

American Trucking Associations, Inc., et al.,

Petitioners

Maurice Smith, Director, Arkansas Highway

and Transportation Department, et al.,

Respondents

REPLY BRIEF TO

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

STATEMENT

There was a national debate and a very highly

contested local debate concerning truck weights. Arkansas

was one of the states with the lower truck weights of 73,280

pounds maximum gross loaded weight. Across the nation,

Arkansas and states to the north formed a “barrier” for

cross country trucking at 80,000 pornds.

For several state legislative sessions, the trucking

interest attempted to raise truck weights to 80,000 pounds.

Because of the necessary trade off between truck weights

and increased taxes on trucks, the controversy never

resolved. The conflict between increased damages caused

by higher truck weights and increased revenues to pay for

the repairs focused the dispute on the amount of damage

caused by a truck weighing 80,000 pounds versus a truck

weighing 73,280 pounds.

The Surface Transportation Act of 1982 ! required all

states to raise truck weights to 80,000 pounds. The

Arkansas Legislature quickly raised the truck weights to

80,000 pounds [Ark. Code Ann. 27-35-203 (Repl. 1987) (App. A

infra) ] and later in the same session enacted a truck tax, Ark.

Code Ann. 27-35-205 (Rep!. 1987) (HUE Tax) (App. B infra).

The Arkansas Legislature preferred a truck tax between

the weight categories of 73,280 pounds to 80,000 pounds and

preferred to not raise taxes on trucks with lower weights.

Because Arkansas taxed a new category of commercial

use, it became extremely important to determine the effect

of the heavy trucks in the weight categories of 73,280

pounds to 80,000 pounds. An American Trucking

Association witness testifying at the trial in this case stated

that the truckers would receive $115.8 million in additional

monies because of the increased weights in Arkansas. This

testimony was based on a 1982 report. The trial court found

the damages caused by the increased truck weights would

be $53 million dollars a year. The truck tax was estimated to

produce approximately $22 million. The tax generated in

1983 approximately $23 million and by 1987 the tax had

generated $31 million per year (App. C infra). The Arkansas

Supreme Court’s concern about the truckers receiving a

windfall should refunds be retroactive is based on the clear

testimony of profits earned and damages caused by the

truckers 2.

23 U.S.C. §127

ATA ». Gray, 295 Ark. 43, 746 S.W.2d 377, 379 (1988).

REASONS FOR REFUSING THE PETITION

I. ARKANSAS AND PENNSYLVANIA HAD

DIFFERENT TAXES

Although the Arkansas Truck Tax may look similar to

the Pennsylvania Tax because the “flat” maximum for

Arkansas is $175.00 as compared to the Pennsylvania Tax

maximum of $180.00, the taxes are very different.

Over 50% of the revenues in 1986-87 were from

truckers who paid the tax ona mileage rate rather than ona

flat rate. (App. C infra). These truckers either paid 5 cents

per mile for the past year’s miles or 8 cents per mile for a

trip permit. All taxes on trucks with 73,280 pounds total

weight and below remained the same. They paid no

additional taxes and did not have any decreases in taxes.

The HUE tax is only on the category between 73,281 pounds

and 80,000 pounds gross loaded weight.

Pennsylvania reduced its license fee by $180.00. There-

fore, Pennsylvania domestic trucks paid no increase in

taxes because the $180 axle tax would be offset by the

decrease in the license fee. ATA v. Scheiner, 107 S.Ct. 2829,

2834 (1987).

Arkansas attempted to raise additional revenues for

road construction to repair the damages from the heavy

trucks. With its tax enjoined and Justice Blackmun’s

statement that in his opinion the tax was unconstitutional

and he felt certain that four judges would note probable

jurisdiction 3, Arkansas was forced to seek new legislation.

The Arkansas Legislature would not convene until

January, 1989, therefore the Governor of Arkansas issued a

call for a Special Legislative Session in October 1987, to

remove the “flatness” of the Arkansas tax.

ATA v. Gray, 108 8 Ct. 2 (1987).

Justice Blackmun’s opinion doomed the Arkansas HUE

Tax. The only constitutional tax appeared to be a mileage

tax with a clause “grandfathering in” those who had

previously paid the tax rather than assessing them under a

new tax. The new rate was set-at 2.5 cents per mile without

a maximum 4,

II. THE LOWER COURT DECISION

The Arkansas Supreme Court prospectively overruled

the HUE tax in light of the Scheiner decision, ATA v. Gray,

supra. However, the Arkansas Supreme Court went one

step further and ordered partial refunds without permitting

any Arkansas licensed truckers to receive the refunds. The

decision additionally awards attorney fees.

The Arkansas Supreme Court, however, did not reach

questions of state law inasmuch as it did not need to answer

state law questions on tax refunds in its opinion. The state

law issues not addressed are as follows: Sovereign

Immunity, requirement of legislative appropriation of

money from the Arkansas Treasury, and voluntary

compliance with the tax 5. In Baccus Transports Ltd. v.

Dias, 468 U.S. 263 (1984), this court said:

These refund issues . .. were not addressed by the

state courts... . Also, resolution of those issues, if

required at all may necessitate more of a record than so

far has been made in this case. We are reluctant,

therefore, to address them in the first instance . . . Ibid,

277.

Ark. Code Ann. 27-35-205 (Repl. 1988) (App. D infra)

5. .

The Arkansas Supreme Court in determining the date that taxes are paid

involuntarily normally uses the date litigation begins. City of Little Rock »

Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied 462 U.S. 1111 (1983)

However, in this case the truckers could have easily hauied at 73,280 pounds.

They “voluntarily” chose to incur the tax liability and also litigate.

)

III. PROSPECTIVE OVERRULING

The principle of “prospective” overruling occurred in

Chevron Oil Co., v. Huson, 404 U.S. 97 (1971). The three prong

test in Chevron may be stated as follows:

1. The new decision must set forth guidelines that

clearly overrule past precedent. The litigants must

have relied upon the past precedent and the new

decision must not have been seen as forthcoming.

The American Trucking Associations challenged the

Arkansas truck tax and the Pennsylvania truck tax. The states

with taxes very similar but which were not in litigation in June

1987, were Kentucky and Indiana ®. Therefore, four state

legislatures previously adopted taxes directly affected by the

Scheiner decision.

The dissents in Tyler Pipe Indus. v. Washington, 107 S.Ct.

2810 (1987) and ATA v. Scheiner, supra, state that the decisions

constitute new precedent. This precedent could not have been

seen as forthcoming because nine states had relied upon

previous commerce law permitting a fixed or maximum tax.

This new precedent may have originated in Armco v. Hardesty,

467 U.S. 638 (1984). However, states such as Washington did not

foresee Armco, as having an effect on its laws. National Can v.

Dept. of Rev., 749 P.2d 1286 (Wash. 1988) appeal dism'd and

cert. denied 108 S.Ct. 2030 (1988). The Washington Supreme

Court believed the recent decision in Tyler Pipe Indus., supra,

qualified for prospective overruling under Chevron v. Huson,

supra., because, among other reasons, new precedent occurred

that could not have been foreseen. The State of Washington

believed that its business and occupational tax was not similar

to West Virginia's tax as determined in Armco v. Hardesty

supra. See National Can v. Dept. of Rev., supra at 1290. The

Armco decision occurred in 1984, and Washington used its

Other states with fuel marker fees similarly affected because the fees

were in the nature of a flat tax were: Connecticut, Maine, Maryland, New

Jersey, and Vermont. See footnotes 11 through 20.

Tyler Pipe Industries date, June 23, 1987, for prospective

overruling. National Can v. Dept. of Rev., at 1291.

2. The void ab initio aspect of unconstitutionality

would not assist in the enforcement of the unconsti-

tutional nature of the tax law.

The petitioners, ATA, made two arguments in

relationship to this case about the second prong of Chevron.

First, a state should not profit from its wrongs, and second,

states are encouraged to enact unconstitutional legislation.

These arguments do not appear responsive to the second prong

of Chevron.

Flat taxes do not need retroactive application to encourage

removal. Since June, 1987, there has been litigation in most of

the states with flat taxes and high fuel marker fees. Arkansas

called a Special Session of the Legislature solely for the

purpose of removing the maximum rate of the tax because of

Justice Blackmun’s injunction. Declaring a tax unconstitutional

does not require any enforcement. The taxpayers will enforce it

and governments will change laws to prevent loss of tax

revenues. ATA argues that Arkansas will profit from the tax.

Arkansas increased truck weights and suffered additional

damages from the heavier trucks. There is no profit in the HUE

tax. Increased damages are much more than the total revenues

from the HUE tax. If Arkansas is required to refund any

money, new road construction will cease for a period of time.

When Justice Blackmun impounded the HUE tax on August 14,

1987, the Department could not award any construction

contracts for several months. Arkansas highway revenues are

special revenues derived from taxes on vehicle license

registrations and fuel taxes 7 These cash funds are distributed

on the last business day of each month by the State

Treasurer *-

Ark. Code Ann. 2770-202 (App. E infra)

Ark. Code Ann. 27 70-203 (App. F infra)

These special revenues are distributed monthly as

follows: Three percent (3%) to the Constitutional and Fiscal

Agencies and the remaining funds are divided 15% to the

Counties, 15% to the Cities and 70% to the Highway

Department. 9

Arkansas does not accrue its highway construction

funds. The funds are spent on a cash basis. Salaries, internal

budgets and all construction funds are appropriated every

two years by the Legislature in advance of collection. All

excess or unspent funds may be used for construction.

Therefore, monies are expended as they are received.

The petitioners, ATA, have had a long history of not

wanting to pay their share of taxes. The road taxes (fuel and

license taxes) are primarily paid by passenger cars. !° The

truckers have consistently opposed paying a fair share of

maintenance costs and prefer to maintain the current rate

of inequitable taxes. Any refund will only enrich companies

who have previously charged the tax as a freight bill, cost of

doing business or charged the independent owner-operator.

Any inequity for Arkansas truckers has been removed by

refunding the escrowed monies only to out of state truckers.

ATA v. Gray, supra.

ATA’s second argument is that if refunds are not

retroactive, legislatures are encouraged to draft

unconstitutional legislation. This statement insults the

legislative process. The first impediment to legislation

clearing a committee is a possibility of unconstitutionality.

The legislative process is an extremely complicated

democratic procedure with much “give and take.” The

Ark. Code Ann. 27-70-206 (App. G infra)

10.

Truck license fees are apportioned so that one truck pays the average

of one license fee, not several license fees, ATA v. Scheiner. supra, at

2834. Diesel fuel taxes are paid by all vehicles with diesel engines.

ATA’s statement demonstrates contempt for the legislative

branch of government indicating a preference for judicial

action.

3. What results and inequities will be imposed by the

retroactive application of this case as compared to

prospective application.

The truckers on a nationwide basis received an

increase of $115.8 million per year in a 1982 projection of

profits from being able to haul goods across Arkansas in an

80,000 pound truck as compared to a 73,280 pound truck.

The increase in damages was estimated to be $53 million

and that was the damage figure adopted by the trial judge

in this case. The revenues received from the HUE tax have

all been appropriated for road construction and

maintenance and expended. The truckers received extra

profits with heavier weights.

In the refund proceedings in this case, the independent

owner/operators have moved to be joined as a class for

refunds asserting that their employer carriers forced them

to pay the HUE tax. These owner/operators have requested

that they should receive the refunds because they were

billed by their employer for the tax.

The argument of the ATA is that the Arkansas trucker

has an economic advantage as compared to non-Arkansas

truckers under the HUE tax. However, on_the list of

truckers that the ATA used to assert a three to one mileage

difference there appeared most of the large Arkansas

trucking companies. Most Arkansas carriers license out of

state. The ATA argues that out of state truckers paid the

tax at an unconstitutional rate. However, they do not

discuss that some out of state truckers paid the $175.00

maximum amount, at presumably an unconstitutional rate,

but would receive a refund. It appears that the truckers are

arguing in the courts the same argument they made in the

legislature, “increase the truck weights but don't charge for

the increased maintenance costs.” The equities are that the

truckers received huge economic benefits and the

taxpayers received the burden of maintenance repairs.

IV. REFUND DECISIONS

The Scheiner decision, determining flat taxes on trucks

to be unconstitutional, impacted Pennsylvania 1),

Arkansas_ !2 Indiana !° and Kentucky !4. Other flat taxes

affected were fuel marker fees in Pennsylvania 15,

Vermont '6. New Jersey 17, Maryland !8, Maine 19, and

Connecticut 2°, Additionally some states had “retaliated”

against Pennsylvania's, Arkansas’, Indiana's, and

Kentucky's truck tax. These states had retaliatory taxes:

Florida *!, Georgia 22, Maine 23, Nebraska 24, New

Hampshire 25, New Jersey 26, Oklahoma 27 and Vermont. 28

West Virginia's and Washington's business and

occupational taxes were declared unconstitutional by

Armco and Tyler Pipe. West Virginia refused refunds and

prospectively overruled because of the new precedent. 29

Washington did the same. 3°

Some of the decisions from all this litigation have

resulted in a variety of refund decisions based on State laws

11.

Pa. Cons. Stat. Ann. tit. 75 §9901 (Purdon Supp. 1986)

Ark. Code Ann. 27-35-205 (Repl. 1987)

13.

Ind. Code Ann. §66-8 (Burns Supp. 1986)

14.

Ky. Rev. Stat. Ann. §138.660 (4)(7) (Baldwin Supp. 1986)

15.

Pa. Cons. Stat. Ann. tit. 75 § 2102 (Purdon 1981)

16.

Vt. Stat. Ann. tit 23 §§ 415, 3007, 3010 (Supp. 1982 and 1986)

17.

N.J. Stat. Ann. §54:39A-10 (West Supp. 1986)

18.

Md. Transp. Code Ann. §13-423(a) (1984)

19.

Me. Rev. Stat. Ann. tit. 29 §246-A (Supp. 1981)

20.

Conn. Gen. Stat. Ann. §12-487 (West 1983)

21.

Fla. Stat. Ann. §207.004(5"d) (West Supp. 1986)

22.

Ga. Code Ann. §40-2-111 (1985)

23.

Me. Rev. Stat. Ann. tit. 29 §2243 (Supp. 1985)

24.

Neb. Rev. Stat. §60-305.03 (1984)

25.

N.H. Rev. Stat. Ann. §260:53 (1982)

26.

N.J. Stat. Ann. §39:3-6 (West 1973)

27.

Okla. Stat. Ann. tit. 47 §1120 (West Supp. 1985)

28.

Vt. Stat. Ann. tit. 23 §417 and 3021 (Supp. 1982 and 1985)

29.

Armco, Inc. v. Hardesty, supra. The refund case is Ashland Oil, Inc

». Rose, 350 S.E.2d 531 (W. Va. 1986) Appeal dism'd for lack of

jurisdiction, 107 S.Ct. 1949 (1987)

30.

Tyler Pipe Indus. v. Washington Dept. of Revenue, supra. The

refund case is National Can Corp. v. Dept. of Revenue, supra.

such as decisions applying state Sovereign Immunity *!,

refunding impounded funds 32, and decisions denying

refunds because of voluntary compliance with the tax °°.

The Arkansas Supreme Court has refunded

unconstitutional taxes from the date of inception of the

tax 34, from the date of litigation *5, or prospectively over-

ruling the tax in the future 96. These refund decisions are

more appropriate administered by state courts applying the

principles established in Chevron v. Huson, supra.

31.

ATA v. Conway, 308 A.2d 405 and 408 (VT. 1986) cert. denied; 107 S.Ct.

3262 (1987).

32.

Private Truck Council of America, Inc. v. New Hampshire, 517 A2d

1150 (N.H. 1986). Retaliatory tax declared unconstitutional and refunds

paid from impounded funds only. Retroactive application denied because

of lack of proof of involuntary payment.

33.

Private Truck Council of America, Inc. v. New Jersey, 534 A.2d 13

(N.J. 1987). New Jersey refunded its unconstitutional retalitory tax from

the date of litigation deciding that the litigation date was when

protesting an involuntary tax would begin; Continental Trailways v-.

Director, 5309 A.2d 769 (N.J. 1986) cert. dism'd per stipulation 107 S.Ct.

1636 (1987). An excise tax refund was refused because Trailways paid the

tax on mistake of law and therefore voluntarily paid the tax; and Private

Truck Council v. Sec. of State, 503 A.2d 214 (Me. 1986) cert. denied 476

U.S. 1129 (1986) ruled that the taxes were voluntarily paid and ordered no

refunds except for impounded funds.

34.

Ragan v. Venhaus, 289 Ark. 265, 711 S.W.2d 462 (1986)

35.

City of Little Rock v. Cash, supra.

36.

Sp. Sch. Dist. of Ft. Smith v. Sebastian Co., 277 Ark. 326, 641 S.W.2d

702 (1982) where a county school tax was declared prospectively

unconstitutional, without refunds and not to take effect until the end of

1983 with tax collection to be made through the fall of 1984.

In conclusion, Arkansas submits that when an

established tax is declared unconstitutional, there is a

great deal of sorting out that must occur. As the State of

Washington viewed its tax differently from West Virginia,

Arkansas viewed its tax as substantially different from

Pennsylvania.

The Arkansas HUE tax collection year began in June.

Mailouts occurred earlier, however tax revenues and

qualifications would not be received or sent until June 1.

The $18 million that the ATA asserts Arkansas collected

after the Scheiner decision is incorrect. Included in the $18

million are revenues collected during June, 1987, for the

fiscal year 1986-87 and revenues for the 1987-88 year

collected before June 23, 1987.

The decision by the Arkansas Supreme Court partially

refunding the HUE tax and awarding attorney fees is an

excellent resolution of the new precedent established by

Scheiner.

CONCLUSION

The petition for the writ of certiorari should be denied.

October 1988

Respectfully submitted,

A.T. GOODLOE, II

Counsel of Record

ROBERT L. WILSON

Arkansas Highway and

Transportation Department

P.O. Box 2261

Little Rock, AR 72203

(501) 569-2271

JOE MORPHEW

Revenue Legal Counsel

P.O. Box 1272-L

Little Rock, AR 72203

JAY WILLS

Assistant Attorney General

200 Tower Building

Fourth & Center Streets

Little Rock, AR 72201

Counsel for Respondents

A-l

APPENDIX A

27-35-203. Single and tandem axle load limits.

(a) Maximum Single-Axie Load. The total gross load

imposed on the highway by the wheels of any one (1) single

axle of a vehicle shall not exceed twenty thousand pounds

(20,000 Ibs.).

(b) Maximum Tandem-Axle Load. (1) The total gross

load imposed on the highway by two (2) consecutive axles in

tandem articulated from a common attachment or

individually attached to the vehicle, and spaced not less

than forty inches (40”) nor more than ninety-six inches (96")

apart, shall not exceed thirty-four thousand pounds (34,000

Ibs.).

(2) No one (1) axle of any such group of two (2)

consecutive axles shall exceed the load permitted for a

single axle.

The maximum weight imposed on the highway by the front

steering axle of a vehicle shall not exceed twelve thousand

pounds (12,000 Ibs.).

(2(A) The Director of State Highways and

Transportation shall issue special permits for a

maximum single front or steering axle weight not to

exceed eighteen thousand pounds (18,000 Ibs.) and a

maximum tandem front or steering axle weight of

not to exceed thirty-two thousand pounds (32,000

lbs.) for vehicles of special design, equipment, or

construction, engaged in occasional or specialized

heavy hauling such as, but not limited to, hauling of

heavy machinery, commodities which require

specialized equipment, oil or gas field equipment, or

similar equipment, for a period of not more than one

(1) year, upon application containing satisfactory

proof that the vehicles are used solely for the above

purposes.

A-2

(B) Permits may contain limitations upon

speed of operation that the director may deem

necessary for safety.

(3) The permits authorized under this subsection shall

apply only to the front or steering axle and shall not affect

the requirement of § 27-35-210 that special permits be

obtained for vehicles exceeding other maximum size or

weight limitations imposed in this subchapter.

(d\1) Subject to the limit upon the weight imposed

upon the highway through any one (1) axle as set forth in

subsections (a), (b), and (c) of this section, no vehicle, or

combination of vehicles, shall be operated upon the

highways of this state when the gross weight is in excess of

eighty thousand pounds (80,000 Ibs.).

(2(A)The foregoing maximum gross weights

shall be applicable to vehicles, or combinations of

vehicles, operated on highways in this state that are

a part of the federal interstate highway system or

that have been designated by the State Highway

Commission as primary highways.

(B) On all other highways in this state, the

maximum gross weight of any vehicles, or

combinations thereof, shall not exceed sixty-four

thousand pounds (64,000 Ibs.).

(834A) However, vehicles, or any combination

of vehicles, of a gross weight in excess of sixty-four

thousand pounds (64,000 Ibs.) and not in excess of

seventy-three thousand two hundred eighty pounds

(73,280 Ibs.) may operate upon the secondary

highways of the state at a speed not in excess of

forty (40) miles per hour.

(B) Vehicles, or any combination of vehicles, of

a gross weight in excess of seventy-three thousand

two hundred eighty pounds (73,280 Ibs.) and not in

excess of eighty thousand pounds (80,000 Ibs.)

A-3

operating on the secondary highways of the state

shall also be limited to a maximum speed of forty (40)

miles per hour.

(4) Greater gross weights than permitted may be

authorized by special permit issued by competent authority

as authorized by law, or lesser gross weights will be

required when highways are posted.

(e41) No vehicle, or combination of vehicles, shall

operate upon any highway in this state when the gross

weight of the vehicle, or combination thereof, is in excess of

seventy-three thousand two hundred eighty pounds (73,280

lbs.) unless the vehicle, or combination thereof, shall not

exceed the value given in Table I corresponding to the

distance in feet between the extreme axles of the group,

measured longitudinally to the nearest foot.

(2) All vehicles desiring to operate with the increased

axle weight as provided by this subsection must comply

with the formula in Table I.

Table I

GROSS WEIGHTS ALLOWABLE UNDER THE

FORMULA CONTAINED IN THE FEDERAL WEIGHT

LAW ENACTED JANUARY 4, 1975, THAT ARE APPLI.

CABLE TO VEHICLES OR COMBINATIONS THEREOF

IN ARKANSAS FOR GROSS WEIGHTS IN EXCESS OF

73,280 POUNDS

FORMULA W = 500 LN

N - 1 + 12N + 36

Except that two (2) consecutive sets of tandem axles may

carry a gross load of thirty-four thousand pounds (34,000

lbs.) each, providing that the overall distance between the

first and last axles of the consecutive sets of tandem axles is

thirty-six feet (36’) or more.

A-4

W — maximum weight in pounds carried on any group of two

(2) or more axles computed to the nearest five hundred

pounds (500 Ibs.).

L.—distance in feet between the extremes of any group of

two (2) or more consecutive axles.

N — number of axles in group under consideration.

Distance in feet between the Maximum load in pounds

extremes of any group of 2 carried on any group of 2 or

or more consecutive axles more consecutive axles

4 axles 5 axles 6 axles

cc ras a ey re ry Seat C5 ee

. aa ee ares sae | _... 74,500

Me vacan dase | | _.. . 75,000

36 75,500

37 | , 76,000

39 _.. . 77,500

40 rm... _. . 78,000

41 73,500 78,500

42 _. 74,500 79,000

43 _. 75,000 80,000

44 SD ee ne hed -.......75,500 80,000

Pata bre - RA ry _ 76,000 80,000

Oe. on Ue olen ieeups aus eaueene ouaie 77,000 80,000

pe Pi ey a eta _. .73,500 77,500 80,000

cic dduiesei case co satae 74,000 78,000 80,000

Peres wk ek 6 kw 74,500 78,500 80,000

Se a ee _. .75,500 79,500, 80,000

BS it ace aiace eae 76,000 80,000 80,000

a ie dutsit's ep i> 76,500 80,000 80,000

Ae Fe at i ee 77,500 80,000 80,000

Senna G he ek te. 2... . 78,000 80,000 80,000

ere Da ee see 78,500 80,000 80,000

«ee oo... .... 79,000 80,000 80,000

Se SAMs Bee 80,000 80,000 80,000

(3MA) If the Federal Highway Administration or the

United States Congress prescribes or adopts vehicle

A-5

size or weight limits greater than those prescribed by

the Federal-Aid Highway Act of 1956 which limits

exceed, in full or in part, the provisions of subsections

(a), (b}, (c), (d), or (e), the State Highway Commission shall

adopt size and weight limits comparable to those

prescribed or adopted by the Federal Highway

Administration or the United Staes Congress and shall

authorize the limits to be used by owners or operators

of vehicles while the vehicles are using highways within

this state.

(B) No vehicle size or weight limit so adopted by

the commission shall be less in any respect than those

provided for in subsections (a), (b), (c), (d), or (e) of this

section.

(fM1XA) Vehicles, or a combination of vehicles,

transporting products commonly recognized in

interstate commerce at gross weights exceeding

seventy-three thousand two hundred eighty pounds

(73,280 Ibs.) shall be permitted direct access across any

highway in this state to or from the nearest federal

interstate highway or the nearest state primary

highway.

(B) Vehicles, or combinations thereof, shall be subject to

the limits set forth in subsections (a), (b), (c), (d), (e), and (g).

(2) Where more than one (1) highway in this state

affords access to or from the point of shipment or receipt

within this state, the State Highway Commission may

designate the access route to or from the nearest federal

interstate highway or state-designated primary highway.

(gX1KA) Vehicles, or combinations of vehicles,

with five (5) axles hauling unfinished and unprocessed

farm products, forest products, or other products of the

soil from the point of production, harvesting, or

severance to the point in this state at which they shall

first undergo any processing, preparation for

processing, conversion, or transformation from their

A-6

raw, natural, or severed state shall be permitted an

eight percent (8%) variance above the allowable gross

weight whenever the formula in subsection (e) is applied

to the vehicle or combination of vehicles.

(B} Vehicles, or combinations of vehicles, with

five (5) axles and used exclusively by the owner of

livestock or poultry for hauling animal feed to the

owner's livestock or poultry for consumption in this

state shall be permitted an eight percent (8%) variance

above the allowable gross weight whenever the formula

in subsection (e) is applied to the vehicle or combination

of vehicles.

allowable variance or tolerance, shall not exceed eighty

thousand pounds (80,000 Ibs.).

(24A) Vehicles, or a combination of vehicles,

meeting all of the requirements of this subsection shall

not be required to meet the tandem axle load limits of

subsection (b) of this section if the vehicles, or

combinations thereof, do not exceed the allowable gross

weight permitted by the formula in subsection (e) of this

section, plus any variance, and do not exceed a gross

weight of eighty thousand pounds (80,000 Ibs.).

(BXi) No tandem axle shall exceed thirty-six

thousand five hundred pounds (36,500 Ibs.) under this

subsection.

(ii) No variance on gross weight or axle shail be

permitted on federal interstate highways.

(iii) When a violation of this subsection occurs,

fines and penalties shall be assessed without regard to

any variance on gross weight or axle weight that may

be i .

(hil) When any axle, including any enforcement

tolerance, is overloaded but the total weight of all axles,

including the steering axie, does not exceed the maximum

A-7

total weight allowed for all axles including the steering

axle, the operator shall be permitted to unload a portion of

the load or to shift the load if this will not overload some

other axle, without being charged with violating this

section and without being required to pay the penalties

provided by law.

(2) The maximum axle load provided for in this

. Section is subject to reduction as provided in §§

27-35-101 — 25-35-103.

(iM1) Vehicles, or combinations of vehicles, with five

(5) axles hauling sand, gravel, rock, or crushed stone shall be

exempt from the federal bridge formula found in subsection

(e) of this section on noninterstate highways in this state.

(2) Such vehicles must comply with the tandem axle

limit of thirty-four thousand pounds (34,000 Ibs.) and the

single axle limit of twenty thousand pounds (20,000 Ibs.).

(j}) Any operator found violating the provisions of

subsection (d) prohibiting the operation of vehicles, or

combination of vehicles, of a gross weight in excess of sixty.

four thousand pounds (64,000 lbs.) and not in excess of

eighty thousand pounds (80,000 lbs.) upon the secondary

highways of the state at a speed in excess of forty (40) miles

per hour, or any owner, principal, employer, lessor, lessee,

agent, or officer of any firm or corporation who permits

such operator to violate these provisions, shall be guilty of

a misdemeanor as prescribed in § 27-35-202 and shall, in

addition, pay a penalty, to be computed as prescribed in §

27-35-202, for all weight loads in excess of sixty-four

thousand pounds (64,000 Ibs.).

A-8

B-1

APPENDIX “B”

27-35-204. Compliance with Highway Use Equalization Tax

Law.

Any motor vehicle, registered in Arkansas at the

maximum registration fee for sixty-eight thousand one

pounds (68,001 Ibs.) to seventy-three thousand two hundred

eighty pounds (73,280 lbs.) as provided in § 27-14-601, or any

motor vehicle registered in any other state to carry in

excess of seventy-three thousand two hundred eighty

pounds (73,280 lbs.) shall be authorized to operate in this

state with a gross weight of up to eighty thousand pounds

(80,000 Ibs.) in accordance with §§ 27-35-107, 27-35-203,

27-35-206, and 27-35-208, if the vehicle complies with the

appropriate subsections of § 27-35-205, the Highway Use

Equalization Tax Law.

27-35-205. Highway use equalization tax.

(a) As used in this section, unless the context

otherwise requires:

(1) “Department” means the Director of State

Highways and Transportation;

(2) “Division” means the Director of the Department

of Finance and Administration;

(3) “Motor vehicle” means all cargo vehicles required

to be registered for use upon the public highways of this

state, which are designed, used, or maintained primarily for

the transportation of property and having a declared gross

weight of seventy-three thousand two hundred eighty-one

pounds (73,281 lbs.) or more. For the purpose of this section,

truck tractors, single unit trucks, semitrailers, and trailers

operated in combination thereof shall constitute a single

~vehicle. The person having the use or control, or the right to

use or control, of the part of such a vehicle furnishing the

B-2

motive power is the highway user with respect to the entire

vehicle and is, accordingly, subject as such to the provisions

of this section;

(4) “Truck” includes the terms “truck” or “truck

tractor” and “semi-trailer” or “trailer” when operated in

combination with a truck or truck tractor;

(5) “User” includes any person having the use and

control, or the right to the use and control, of any motor

vehicle;

(6) “Highway” includes all highways, roads, and

streets of this state generally open to the use of the public

as a way for vehicular traffic;

(7) “Gross weight” means the actual weight of the

truck or truck tractor, plus the actual weight of the heaviest

semitrailer or trailer or combinations thereof with which it

is to be operated in combination plus the actual weight of

the heaviest load to be carried thereon.

(8) “Arkansas registered vehicle” or “Arkansas

registered truck” means a vehicle registered in Arkansas

by a user who is an Arkansas resident and bearing an

Arkansas license plate.

(bX1) A tax is imposed upon all users of motor

vehicles in compensation for the use of the highways of this

state to be known as the “Highway Use Equalization Tax.”

(2) Such tax shall be in addition to all other taxes

required to be paid on such vehicles except as provided in

this section.

(ec) The Highway Use Equalization Tax shall not apply

to any motor vehicle whose dewared gross weight, as

defined in subsection (a) above, is seventy-three thousand

two hundred eighty pounds (73,280 Ibs.) or less; nor to

B-3

vehicles used exclusively in hauling unfinished and

unprocessed farm products, forest products, clay minerals,

or ores from the point of production, harvesting, or

severance to the point at which they shall first undergo any

processing preparation for processing, conversion, or

transformation from their raw, natural, or severed state;

nor to vehicles used exclusively for hauling animal feed by

owners of livestock or poultry for consumption by livestock

or poultry owned by them; nor to any vehicle owned and

operated by the federal government, or the State of

Arkansas, or any political subdivision thereof.

(d) The provisions of this section shal] not apply to

any motor vehicle used on an interstate trip with an origin

or destination within ten (10) miles of the geographic

boundaries of this state, if the one-way travel distance in

the state is not over ten (10) miles.

leX1MA) The user of every vehicle subject to this

section which is an Arkansas registered vehicle, before

operating such vehicle over the highways of this state,

shall qualify such vehicle with the division.

(Bi) Qualifications shall be made by application

to the division on forms to be provided by the division.

(ii) The application may be filed with the division

at the time of registration of the vehicle.

(24A) Such application shall be accompanied by

payment to the division of a fee of five dollars ($5.00), to

be deposited into the Constitutional and Fiscal

Agencies Fund, which fee shall cover the clerical cost of

such qualification.

(Bi) Upon receipt of such application and

payment of the tax as determined in this section, the

division shall make appropriate record of the vehicle

qualified and certify such qualification on the applicant's

registration certificate or a registration cab card, one of

B-4

which is to be carried in the cab of the vehicle at all

times.

(ii) The registration certificate or registration cab

card, in addition to the registration information and the

required certification, shall show the amount of tax paid

for such vehicle as determined by subsection (f) of this

section.

(fM1MA) At the time of qualification of any

Arkansas registered truck subject to this section which

is registered through the International Registration

Plan, the division may fix a mileage rate in cents per

mile for each truck so registered and qualified.

(Bi) The division shall determine the

rate, Sitien te us een Ge

application for registration of the truck, according to

the following tabie: |

Vehicle Weight (pounds) Mileage Rate (dollars)

73,281 — 80,000 $0.05

(ii) The tax determined under this provision for

every truck subject thereto shall be in the amount of

the determined mileage rate multiplied by each mile the

truck is operated over the highways of this state, as

reported to the division for registration under the

International Registration Plan.

(24A) At the time of the qualification of any

Arkansas registered truck subject to the provisions of

Plan may elect to pay, an annual mileage tax in lieu of

an amount determined by the applicable mileage rate

set forth by subdivision (f"1) of this section.

(B) The division shall determine such annual

mileage tax by utilizing the gross weight deciared in the

application for registration of the truck, according to

the following table:

B-5

Vehicle Weight (pounds) Annual Tax (dollars)

73,281 — 80,000 $175

(gX1) The tax, as determined by either subdivision (fX1)

or subdivision (fX2) of this section, shall become due and payable

at the time of registration.

(2) No license shall be issued, nor operation authority

granted, to any Arkansas registered user subject to the

provisions of this subchapter until such time as the full amount

of the tax determined to be due under the provisions of this

section, together with all penalties, shall have been paid.

(h) The division is authorized to collect those taxes and

fees imposed by this section upon the Arkansas registered

users subject to the provisions of this subchapter, to make

timely deposits into the State Treasury of all moneys collected

by the division, and to administer the provisions of this section

as they pertain to Arkansas registered users, including the

right to inspect and audit, at reasonable times at any place

within this state, the books, records, and documents of any

Arkansas registered users required to pay the Highway use

Equalization Tax imposed by this section.

(i) (1XA) The user of any vehicle subject to the

provisions of this section, in lieu of qualification in

accordance with the provisions of subsection (e) of this

section, may remit to the department either an annual

mileage tax in an amount determined by subdivision

(fX2) of this section or pay an amount determined by the

applicable mileage rate set forth in subdivision (f\1) of

this section or pay a trip permit fee.

(BMi) It is the intent of this subchapter that all

users subject to the provisions of this section must

either qualify with the division as provided in

subsection (e) of this section and pay the appropriate

taxes or comply with the provisions of this subsection.

(ii) All Arkansas registered vehicles must qualify

with the division and remit such taxes to the division.

B-6

(2XAXi) If the user elects to pay the annual mileage

tax, the department, upon application thereof and

receipt of the payment, shall issue an annual mileage

tax certificate to the user which shall be affixed to the

cab of the vehicle by the user.

(ii) If the user elects to pay an amount

determined by the applicable mileage rate set forth in

subdivision (fX1) of this section, the department shall

utilize the appropriate rate multiplied by each mile the

vehicle was operated over the highways of this state for

the preceding twelve-month period based on mileage

records of the user acceptable to the department.

(BXi) Upon payment of this amount, the

department shall issue a certificate to the user, which

shall be affixed by the user to the cab of the vehicle.

(ii) If the user elects to utilize a trip permit, trip

permits for trucks with a gross weight of seventy-three

thousand two hundred eighty-one pounds (73,281 lbs.)

through eighty thousand pounds (80,000 Ibs.) shall be

issued at a fee of eight dollars ($8.00) for each one

hundred (100) miles of travel, rounded to the nearest

one hundred (100) miles, whether loaded or unloaded.

(iii) These permits shall be issued by the

department in such forms as it deems appropriate.

(j(1) The tax provided for in this section must be paid

by the users of all applicable vehicles using the highways of

this state.

(2) No reciprocal agreement or agreement of any

nature heretofore or hereafter entered into between

officials of this state and those of any other state may

exempt any user of such vehicles using the highways of this

state from the provisions of this section and payment of the

tax levied by this section.

B-7

(k) Any user found operating any vehicle subject to

the provisions of this section over the highways of this state

without complying with this section, or without having

available in or on the cab the appropriate certificate or trip

permit required by this section, shall be guilty of a

misdemeanor and upon conviction shall be punished by a

fine of no less than two hundred dollars ($200) nor more than

five hundred dollars ($500) for the first offense and of no less

than five hundred dollars ($500) nor more than one thousand

dollars ($1,000) for each subsequent offense.

(l) This section shall be liberally construed to

effectuate its purposes.

(m1) All fees, taxes, penalties, and interest collected

under the provisions of this section not specifically

classified as constitutional and fiscal agencies funds shall be

classified as special revenues and shall be deposited in the

State Treasury.

(2) The net amount thereof shall be transferred by the

State Treasurer on the last business day of each month:

(A) Fifteen percent (15%) of the amount to the

County Aid Fund;

(B) Fifteen percent (15%) of the amount to the

Municipal Aid Fund; and

State Highway and Transportation Department Fund.

(3) These funds are to be further disbursed in the

same manner and used for the same purposes as is set out in

the Arkansas Highway Revenue Distribution Law, §

27-70-201 et seq.

C-1

APPENDIX “C”

C-3

C-2

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D-1

APPENDIX “D”

6 7-35-204. Compliance with tax on vehicles weighing more

than 73,280 pounds.

Any motor vehicle registered in Arkansas at the

maximum registration fee for sixty-eight thousand one

pounds (68,001 lbs.) to seventy-three thousand two hundred

eighty pounds (73,280 l|bs.), as provided in §

27-14-601(aX3XG), including any motor vehicle registered

under the International Registration Plan at the maximum

fee for its Arkansas-apportioned mileage or any motor

vehicle registered in any non-IRP state to carry in excess of

seventy-three thousand two hundred eighty pounds (73,280

lbs.), shall be authorized to operate in this state with a gross

loaded weight of up to eighty thousand pounds (80,000 Ibs.),

in accordance with §§ 27-35-107, 27-35-203, 27-35-206, and

27-35-208(c), if the vehicle complies with the appropriate

subsections of § 27-35-205 and the laws of this state

concerning motor vehicle registration and licensing for the

qualification year beginning July 1, 1988, and for each year

thereafter.

27-35-205. Annual tax on vehicles weighing more than 73.280

pounds.

(a) As used in this section, unless the context

otherwise requires:

(1) “Department” means the Arkansas State Highway

and Transportation Department;

(2) “Motor vehicle” means all cargo vehicles required

to be registered for use upon the public highways of this

state designed, used, or maintained primarily for the

transportation of property and having a declared gross

weight of seventy-three thousand two hundred eighty-one

pounds (73,281 lbs.) or more. For the purpose of this section,

truck-tractors, single unit trucks, semitrailers, and trailers

D-2

operated in combination thereof shall constitute a single

vehicle. The person having the use or control, or the right to

the use or control, of the part of such a vehicle furnishing

the motive power is the highway user with respect to the

entire vehicle and is accordingly subject as such to the

provisions of this section;

_ (3) “Truck” includes the terms “truck” or “truck-

tractor” and “semi-trailer” or combinations of “trailers” or

“semitrailers” when operated in combination with a truck

or truck-tractor;

(4) “User” means any person or entity having the use

and control, or the right to the use and control, of any motor

vehicle. Use and control of a motor vehicle includes vehicles

under a long-term lease and not vehicles under a trip lease;

(5) “Highway” includes all highways, roads, and

streets of this state generally open to the use of the public

as a way for vehicular traffic;

(6) “Declared gross weight” means the maximum

gross weight at which a vehicle is authorized to operate, as

shown on the vehicle license registration;

(7) “Gross weight” means the actua! weight of the

truck or truck-tractor, plus the actual weight of the heaviest

semitrailier or trailer or combinations thereof with which it

is to be operated in combination plus the actual weighi of

-the heaviest load to be carried thereon;

(8) “Arkansas-registered vehicle” or “Arkansas-

registered truck” means a vehicle registered in Arkansas

by a user who is an Arkansas resident, and bearing an

Arkansas license plate;

(9) “Net laden miles” means the total miles driven in

Arkansas by the user vehicle less the total unladen miles

traveled in Arkansas by the user vehicle; and

D-3

(10) “Unladen miles” means those miles traveled with

the vehicie totally empty and free of cargo.

(B) It is the intent of the General Assembly that

equipment, supplies, fixtures, and materials carried in

or on a truck to be used in loading, unloading, covering,

containing, packing or securing the cargo hauled or to

be hauled shall not be considered cargo within the

meaning of that term as used in the definition of

unladen miles in subdivision (aX10XA) of this section.

The terms “equipment, supplies, fixtures, and

materials,” as used in this section, shall include, but

shall not be limited to, lifts, hoists, dollies, pallets,

crates, coops, or other containers, covers, packing

materials and supplies, chains, cables, braces, and

blocks.

(b¥1) An annual tax is imposed upon all users, as

defined in subdivision (a\4) of this section, of motor vehicles,

as defined in subdivision (aX2) of this section, in

compensation for the use of the highways of this state. The

tax shall be in addition to all other taxes and fees now

required to be paid on the vehicles.

(2) Any Arkansas-registered vehicle user who desires

to hau’ in excess of seventy-three thousand two hundred

eighty pounds (73,280 Ibs.) shall notify the Arkansas

Department of Finance and Administration at the time of

license registration. The Arkansas Department of Finance

and Administration shall then record the maximum

declared gross weight on the vehicle license registration

and notify the Arkansas State Highway and Transportation

Department, in writing, of those vehicles registered in

excess of seventy-three thousand two hundred eighty

pounds (73,280 Ibs.).

ic) The tax imposed by this section shall not apply to

any motor vehicle with a declared gross weight, as defined

in subdivision (a6) of this section, of seventy-three

thousand two hundred eighty pounds (73,280 Ibs.) or less,

D-4

nor to vehicles licensed exclusively for hauling unfinished

and unprocessed farm products, forest products, and clay

minerals and ores from the point of production, harvesting,

or severance to the point at which they shall first undergo

any processing, preparation for processing, conversion, or

transformation from their raw, natural, or severed state,

nor to vehicles used exclusively for hauling animal feed by

owners of livestock or poultry for consumption by livestock

or poultry owned by them, nor to any vehicle owned and

operated by the United States of America or the State of

Arkansas or any political subdivision otf either.

(d) The provisions of this section shall not apply to

any motor vehicle used on an interstate trip with an origin

or destination within ten (10) miles of the geographic

boundaries of this state if the one-way travel distance in

this state is not over ten (10) miles.

(eX1) The user of every vehicle subject to this section,

before operating the vehicle over the highways of this state,

shall annually qualify the vehicle with the department.

Qualifications shall be made by application to the

department on forms to be provided by the department.

The department may accept applications from owners of

leasing and rental companies that lease vehicles under long:

term leases to customer lessees.

(2) Upon receipt of the application and payment of the

tax as hereinafter determined, and in the manner

hereinafter provided, the department shall make

appropriate record of the vehicle qualified and certify the

annual qualification on the applicant's tax cab card, one of

which is to be carried in the cab of the vehicle at all times.

The department shall also issue a decal to the user, which

decal shall be affixed by the user to the cab of the vehicle.

(3) Any user qualifying a motor vehicle within his

fleet shall be responsible for the removal of the decal and

cab card when that vehicle is terminated from the user's

D-5

fleet. Failure to remove the decal and cab card, which shall

be retained by the user as proof of removal, shall result in a

penalty of twenty-five dollars ($25.00) per month for the

remaining months of the qualification period after the

vehicle was terminated from that user's fleet.

(f¥1) At the time of the qualification of any vehicle

subject to this tax, the department shall apply the mileage

rate, utilizing the gross weight declared in the application

for the vehicle, according to the following table:

Vehicle Weight (pounds) Mileage Rate ‘dollars!

73,281 — 80,000 $.025

(2) The tax determined under this provision for every

vehicle subject to the tax shall be two and one-half cents

($.025) per mile for the net laden miles estimated to be

traveled in Arkansas for the forthcoming twelve months,

July 1 through June 30. At his option, pursuant to

regulations promulgated by the department, the user may

elect to make equal quarterly payments of his annua! tax

liability. Vehicles added to the fleet during the twelve.

month qualification period must qualify by paying two and

one-half cents ($.025) per mile for the estimated net laden

miles to be traveled in Arkansas in the remainder of the

qualifying year, in the manner allowed under regulations

promulgated by the department. Underpayments and

everpayments may be reconciled at the time of any

quarterly estimate payment, or as otherwise allowed by

regulation, based upon actual net laden miles traveled in the

state during the qualification year with the mileage

estimated for the year and an amended application

submitted for refund or credit, or with any additional taxes

due. Failure to make any quarterly payment as provided by

regulation shall result in the cancellation by the department

of the user's authority to operate any vehicle out of

compliance with this section in this state. At the end of the

qualification period, any user qualifying a motor vehicle

with the department must submit to the department such

records as the department deems appropriate according to

regulations promulgated by the department indicating the

total .umber of miles traveled through the state, both laden

and unladen, by the user's vehicle or vehicles. The summary

records submitted by the user must be supported by source

documents retained by the user. In all cases, specific

records must be maintained by the user indicating the

above information for every trip whether laden or unladen,

pursuant to rules and regulations to be promulgated by the

department. The mileage reports and records shal! be

subject to inspection and audit by the department in the

same manner as other books, records, and documents of the

user are subject to inspection and audit as provided by this

section. Any claims made by the user on the applications

and the initial acceptance by the department of those

claims, for application purposes, does not preclude a later

decision by the department based on specific audit findings

during an audit of the user. Any user who shall falsify any

records required by this section shall be guilty of a Class A

misdemeanor.

(gX!) The department is authorized to collect those

taxes and fees imposed by this section upon all users

subject to the provisions of this section, to make timely

deposits into the State Treasury of all such moneys

collected by the department, and to administer the

provisions of this section, including the right to inspect and

audit at reasonable times, at any place, without prior notice.

the books, records, and documents of any user or other

qualifying person required to pay the tax imposed.

(2) No assessment shall be made upon any user under

the tax imposed by this section after the expiration of three

(3) years from the date the user's application for

qualification was made. However, in those cases where an

application is deemed to have been fraudulently made, an

assessment may be made for any prior qualification period

or periods.

D-7

(3) Any user who neglects or refuses to pay the tax

imposed by this section shall be liable for the full tax

amount owed plus interest at the rate of ten percent (10%).

If, at the end of the qualification period, based upon the

difference between the estimated net laden miles and the

actual net laden miles supported by the user's records, the

liability exceeds twenty percent (20%), a ten percent (10%)

penalty may also be imposed. Any user making quarterly

payments who fails to make the quarterly payments, as

provided by regulation, may be assessed, after hearing, a

five percent (5%) penalty in addition to an interest charge

to be calculated in the same manner as provided above.

(h) The user of any motor vehicle subject to the

provisions of this section, in lieu of qualification in

accordance with the provisions of subsection (e) of this

section, may pay a trip permit fee. However, no Arkansas-

registered vehicle shall be allowed to utilize a trip permit.

The trip permit for trucks with a declared gross weight of

seventy-three thousand two hundred eighty-one pounds

(73,281 lbs.) through eighty thousand pounds (80,000 Ibs.)

shall be issued at a fee of eight dollars ($8.00) for each one

hundred (100) miles. However, motor vehicle travel in the

state, unladen, as that term is defined in subdivision (a)(10)

of this section, shall be exempt from payment of the trip

permit fee. The permits shall be issued by the department,

pursuant to regulations to be promulgated by the

department, on such forms as it deems appropriate and

shall be retained by the user for a period of three (3) years

as proof of payment of any liability determined through

audit.

(i) The tax provided for in this section must be paid by

the users of all applicable vehicles using the highways of

this state. No reciprocal agreement or agreement of any

nature heretofore or hereafter entered into between

officials of this state and those of any other state may

exempt any user of these vehicles using the highways of

this state from the provisions of this section and the

payment of the tax levied by this section.

D-8

(j) Any user, or other qualifying person, of any vehicle

subject to the provisions of this section found operating

over the highways of this state without complying with this

section or without having available in or on the cab of the

vehicle the appropriate cab card and decal or trip permit

required by this section shall be guilty of a misdemeanor.

Upon a conviction, the user of the vehicle or other

qualifying person shall be punished by a fine of no less than

one hundred dollars ($100) nor more than two hundred

dollars ($200) for the first offense, and of no less than two

hundred ($200) nor more than five hundred dollars ($500) for

the second offense, and of no less than five hundred dollars

($500) nor more than one thousand dollars ($1,000) for each

subsequent offense.

(k) The annual tax imposed on all users of motor

vehicles shall be applicable for the qualification year

beginning July 1, 1988, and ending June 30, 1989, and for

each year thereafter.

(l) This section shall be liberally construed to

effectuate the purposes thereof.

(m1) All fees, taxes, penalties, and interest collected

under the provisions of this section shall be classified as

special revenues and shall be deposited in the State

Treasury. After deducting therefrom the amount to be

credited to the Constitutional Officers Fund and the State

Central Services Fund as provided in the Revenue

Stabilization Law, § 19-5-101 et seq., the Treasurer of State

shall transfer on the last business day of each month:

(A) Fifteen percent (15%) of the amount thereof

to the County Aid Fund;

(B) Fifteen percent (15%) of the amount thereof

to the Municipal Aid Fund; and

D-9

to the State Highway Department Fund.

(2) The funds shall be further disbursed in the same

manner and used for the same purposes as set out in the

Arkansas Highway Revenue Distribution Law, § 27-70-201

et seq.

D-10

E-1

APPENDIX “E”

27-70-202.

(a) As used in this subchapter, unless the context

otherwise requires, “highway revenues” means and

includes the following special revenues:

(1) Fees for the registration and licensing of motor

vehicles, levied and collected under §§ 27-14-305, 27-14-601,

27-14-603, 27-14-605, 27-14-702, 27-14-704, 27-14-709,

27-14-716, 27-14-717, 27-14-914, 27-14-915, subchapters 5,

11-15, 18, 19, and 21 of chapter 14 of this title, and chapter 15

of this title, except motor vehicle in-transit taxes and drive-

out tag fees levied, respectively, under §§ 27-14-1805 and

27-14-2104;

(2) Taxes levied and collected under the Motor Fuel

Tax Law, § 26-55-201 et seq., and the Special Motor Fuels

Use Tax Law (or Special Motor Fuels Tax Law), § 26-56-101

et seq., commonly referred to, and denominated by the

Director of the Department of Finance and Administration

for tax distribution purposes, as the gasoline tax.

(b) For the purposes of this section, any penalties,

fines, charges, or other amounts paid in connection with, or

in lieu of, any of the foregoing enumeration shall be deemed,

unless otherwise expressly provided for by law, to be

highway revenues and shall be added to, and considered as

a part of, the particular foregoing enun eration to which it

shall respectively belong.

E-2

F-1

APPENDIX “F” -

27-70-203. Deposit in State Apportionment Fund.

All highway revenues shall be deposited in the State

Treasury to the credit of the State Apportionment Fund.

After deducting the amount of uncollected checks and

reserving the amount as shall be required to liquidate

claims for taxes erroneously paid, the State Treasurer shall,

on the last business day of each month, transfer these

highway revenues in the amounts or proportions, and to the

State Treasury funds, specified in § 27-70-205.

F-2

G-1

APPENDIX “G”

27-70-206. Distribution to state funds.

All highway revenues which are available for

distribution during each fiscal year shall be transferred to

the following State Treasury funds, and in the order

specified, with transfers to be made monthly until all

available revenues have been transferred:

(1) First, three percent (3%) of the amount thereof to

the Constitutional and Fiscal Agencies Fund, there to be

used for the purposes specified for the fund by the Revenue

Stabilization Law of Arkansas, § 19-5-101 et seq.;

(2) Next, to the Gasoline Tax Refund Fund, such

amount as the Director of the Department of Finance and

Administration shall, from time to time, certify to the State

Treasurer as being necessary to pay approved gasoline tax

refund claims under the provisions of §§ 26-55-301—

26-55-321 and 26-55-401 — 26-55-408, or other applicable law.

However, the aggregate total amount of all transfers under

this paragraph shall not exceed two million five hundred

thousand dollars ($2,500,000) during any fiscal year.

(3) After meeting the requirements set out in the

foregoing subdivisions, all remaining highway revenues

which are available for distribution during each fiseal year

shall be transferred in the following manner: Fifteen

percent (15%) of the amount thereof, to the County Aid

Fund; fifteen percent (15%) of the amount thereof, to the

Municipal Aid Fund; and seventy percent (70%) of the

amount thereof, to the State Highway and Transportation

Department Fund.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.