# Amicus Curiae Brief — Lineas Aereas Costarricenses, S.A. v. Florida Department of Revenue

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 477 U.S. 901

## Text

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1985

WARDAIR CANADA INC., APPELLANT
Vv.
FLORIDA DEPARTMENT OF REVENUE

LINEAS AEREAS COSTARRICENSES, S.A..,
ET AL., APPELLANTS

Vv.
FLORIDA DEPARTMENT OF REVENUE

AIR JAMAICA LIMITED, ET AL., APPELLANTS
Vv.
FLORIDA DEPARTMENT OF REVENUE

ON APPEAL FROM
THE SUPREME COURT OF FLORIDA

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE

CHARLES FRIED
Acting Solicitor General
ALBERT G. LAUBER, JR.

Assistant to the Solicitor General

Department of Justice
Washington, D.C. 20530
(202) 633-2217

ABRAHAM D. SOFAER
Legal Adviser
Department of State
Washington, D.C. 20520

JIM J. MARQUEZ
General Counsel
Department of Transportation
Washington, D.C. 20590

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C. Florida’s tax on aviation fuel used by foreign airlines
exclusively in foreign commerce is inconsistent with
express federal policy and established international
practice and hence should be invalidated under the

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TABLE OF AUTHORITIES
Cases:

Air Canada, et al. v. Department of Revenue of the State
of Illinois, No. 85CH-6973 (Cook County Cir. Ct.

a Se aia Wc Win aid ow een a cgcelee® «a 33
Complete Auto Transit, Inc. v. Brady, 430 U.S.
SES ne Peas ee een er ee 23
Container Corporation v. Franchise Tax Board, 463
boca d's. 0% ee Mn es 26, 27, 28, 29, 31, 32, 33
Eastern Air Transport, Inc. v. South Carolina Tax
I A, Bn... we Swie s yup s sivlnw a ewe es 30, 31
Edelman v. Boeing Air Transport, Inc., 289 U.S. 249 .. 30

(III)

IV

Cases — Continued Page
Exxon Corp. v. Wisconsin Dep't of Revenue, 447 U.S.
Bs ie ut yds eR tie 00 oa kee MEER Lee ae 27
Japan Line, Ltd. v. County of Los Angeles, 441 U.S.
me seve ees ACT Ee EOE EERE TELE passim
McGoldrick v. Gulf Oil Corp., 309 U.S. 414 ........... 17
Mobil Oil Corp. v. Commissioner of Taxes of Vermont,
GN 205k so v6 4. oes a eels CR ae OU hee aS 26
South-Central Timber Development, Inc. v. Wunnicke,
oe Se | ee eee eee 26
Southern Pacific Co. v. Arizona, 325 U.S. 761......... 25
Tropical Shipping & Construction Co. v. Askew, 364 So.
Pe eS cos os ctu seh ate ean kee ewiee nse 6 5
United Air Lines, Inc. v. Mahin, 410 U.S. 623......... 30
Constitution, treaties, statutes, and regulations:
U.S. Const.:
Art. 1, § 8, Cl. 3:
Ce CI ees teense recuse ee 9, 22, 23, 25
Foreign Commerce Clause ............--. 6, 8, 9, 31
Interstate Commerce Clause ................ 6
Art. 6, Cl. 2 (Supremacy Clause) ............. 6, 8, 9, 25
Amend. XIV:
i ro alu vsieaey sacs ees 6
Equal Protection Clause .................--- 6

Air Transport Services Agreement, Feb. 11, 1946,
United States-United Kingdom, art. 3(2), 60 Stat.
| RRO eee Pi pe ye ard eee fe one ae ee 14, 15
Air Transport Services Agreement, Dec. 27, 1946,
United States-Peru, 61 Stat. 2586 et seq.:
0G TE, GE ME ods Netde cused seenetses 14
St TE I EE 6 eR os pideceese i veerccseves 14
Air Transport Service Agreement, Jan. 8, 1947, United
States-Ecuador, 61 Stat. 2773 et seq.:
6: TI Oe I SEED io bee habs dr ee cones eines 14, 16
we en eer tr 14
Air Transport Services Agreement, Oct. 24, 1956,
United States-Colombia, 14 U.S.T. 429 et seq.:
ok FT a x ive cce vo cteven ys plekowes 14
a te gtk Se. Se ee 15

V

Constitution, treaties, statutes, and

regulations — Continued: Page
Air Transport Services Agreement, Aug. 15, 1960,
United States-Mexico, art. 7, 12 U.S.T. 65 .......... 14, 15
Air Transport Services Agreement, Oct. 2, 1969, United
States-Jamaica, art. 8(A), 20 U.S.T. 2966 .......... 14
Air Transport Services Agreement, May 8, 1974, United
States-Canada, art. XII(1), 25 U.S.T. 794 .......... 15

Air Transport Services Agreement, Sept. 22, 1977,
United States-Argentina, art. F(3), 29 U.S.T. 2801 ...16, 19

Air Transport Services Agreement, Apr. 4, 1979,
United States-Jamaica, art. 10(6), T.1.A.S. No. 9613 . 17

Air Transport Services Agreement, Apr. 2, 1982,
United States-E] Salvador, art. 9(5), T.I.A.S. No.
SOUR 6 5.c0 bas os gan ee ea eee ee eee 17

Air Transport Services Agreement, Apr. 8, 1982,
United States-Barbados, T.I.A.S. No. 10370:

WUE bc eae ven sv eaceea ek en Gee eee 15
UR SD 6. kicds iced ween eae eae eae 15
NR TR. Sue's ico fo eee eee 16

Air Transport Services Agreement, June 23, 1982,
United States-Brazil:
OUR OE 4.665 bons cess ede 15
ONG TE ao a vac aon oes ee ed Ae 19
Air Transport Services Agreement, Oct. 20, 1983,
United States-Costa Rica:

Re io eb ie vos oh ase eee 15
SE, TRI 6 6 vs boson nd beeen ee eae 15
ONE. TD eos ea vn vanen eee eee 15
| tr ee operat > 17
Convention on International Civil Aviation, opened for
signature Dec. 7, 1944, 61 Stat. 1180 et seg. ....... 3, 10, 13
ont... Se, Ge es Gao sea a cee te 20
arts. 22-28, 61 Stat. 1186-1188 .................. 10
NE, Sa ee I Co oa vk oc eee ckee even 20
oe ree 10, 11, 13, 14
0G: Se ee OU woes vaca oes van eenaee 20
arts. 43-66, 61 Stat. 1192-1200 .................. 11
ee epee. ne 11
Customs Convention on Containers, May 18, 1956, 20
eR OF Geer re sn te becca 25

Se OR Os 6 cE oak ee ee eke eae 25

Vi

Constitution, treaties, statutes, and
regulations — Continued: Page

Nonscheduled Air Service Agreement, May 8, 1974,
United States-Canada, 25 U.S.T. 788 et seq.:

ant. RA SOUT, FOG inci aweveiscenenvweces 19
out, TA x + 6.0 5 kes Kncsaeennns 14, 19
art. XEMMMe}, BO U.S.T. TOE . 05. cc vcccevvcesevss 15
ort, RVG Ses Oe a6 Sh new c en oun senses. 19
15 U.S:C. (1976 ed.) 751 ef 80g. ... 0... ccc ccc cececoes 18
10 U.S. SE so oes se vnc So udp eocieneevecssans 25
BO UZESs. DOE ko tix s 0.5: nb0kbenes cas ecaeenteres see 16
26 U.S.C. GERD «oc cys ccevesvisevseueveses sees 16
BUS0 Ce 2... a ae eee 16
96 U.S.C. GRRE oc ov here de tide wees Wasivenduere 16
49 U.S.C. As, TRGIRD «oie os cen cincseusycersueres 4
US tee OW. «6 eee 16
Fla. Stat. Ann.:
§ 212.0UE) (Wheat 1971)... 2. ne cece cccscncess 4
§ 212.08(4\aX2) (West Supp. 1985) .............. 5
§ 212.62(2) (West Supp. 1985) ..............---- 4
§ 212.62(3\(c) (West Supp. 1985) ............---- 5
1985 Fla. Laws 85-348:
| Tey pe reese Pere eer tk eee 5
§ 2 (to be codified at Fla. Stat. § 206.9825) ........ 5
§ 2 (to be codified at Fla. Stat. § 206.9855) ........ 5
68 osha ee eee 5
CD iy cei Eee eee eee 5
Ill. Admin. Reg. § 130. 0 2080(c) (1984) yc gen eae am 33

Mass. Act of July 1, 1985, ch. 145:
§ 7 (to be codified at Mass. Gen. Laws Ann. ch. 46J,

SW 5. sk ecsechar eee 33, 34
y Ua i 33

19 C.F.R.:
re Fe Oe Be 16

Vil

Miscellaneous Page
Assembly Bill, Cal. Leg., 1985-1986 Reg. Sess. ....... 34

M. Brenner, J. Leet & E. Schott, Airline Deregulation
MRE aay eee ei Nnn Ak ABe TS et Maree 18
11 Foreign Affairs Manual (Feb. 25, 1985) ........... 18

ICAO’s Policies on Taxation in the Field of International
Air Transport, ICAO Doc. 8632-C/968 (Nov. 1966) . . . . 11,12
U.S. Civil Aeronautics Board, FY 1976 Report to Con-

CE SE Fae ARG la os Weick oes hee ea ener ce ves 20, 34
U.S. Civil Aeronautics Board, FY 1977 Report to Con-
SE. Ghia wa
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17a

AMBASSADE DE FRANCE
AUX ETATS-UNIS

Washington, D.C.
30 novembre 1984

L’Ambassade de France présente ses compliments
au Département d’Etat et a l’honneur de lui faire
savoir ce qui suit:

La taxation sur les carburants des aeronefs in-
staurée par |’Etat de Florida a la suite d’une décision,
en date du 11 avril 1983, préoccupe vivement les
Autorités francaises.

1. En effet, cette mesure, susceptible a i’évidence
d’étre prise et appliquée dans d’autres Etats en
termes voisins ou comparables, nous parait, pour
l’essentiel, en opposition avec l’esprit de notre accord
bilatéral de services aériens du 27 mars 1946, notam-
ment avec son article 3-C.

De méme est-elle en opposition avec l’article 24
(A) de la Convention de Chicago en date du 7 dé-
cembre 1944.

Les autorités francaises croient done devoir re-
lever que le maintien d’une telle mesure risquerait de
porter atteinte, du point de vue des responsabilités
internationales, 4 la notion méme d’accords bilatér-
aux de services aériens qui pourraient ainsi étre mod-
ifiés de maniére unilatérale et contrairement aux en-
gagements formels souscrits par le gouvernement des
Etats-Unis. ,

Cette constatation avait déja été faite par la note
adressée le 5 mars 1984 par l’Ambassade a propos de
l’affaire—analogue dans son esprit—de la suppres-
sion, dans |’Etat d’Illinois, de l’exonération de la taxe
sur les achats effectués dans les aéroports.

18a

2. En outre, cette mesure est contraire a la réso-
lution ad hoe du Conseil de |’Organisation de |’Avia-
tion Civile Internationale du 14 novembre 1966 qui
prévoit a la section 1, paragraphes 2 et 4, que:

“lorsqu’un aéronef immatriculé dans un Etat part
d’un aéroport international d’un autre Etat, soit a
destination d’un autre territoire douanier de celui-ci, |
soit 4 destination du territoire d’un autre Etat, le
carburant, les lubrifiants et autres produits consom-
mables embarqués pour étre consummés en vol doi-
vent étre fournis en franchise de tous droits de dou-
ane et autres, ou que les droits percus doivent étre
remboursés, 4 condition qu’avant de quitter le terri-
toire douanier considéré, l’aéronef ait rempli toutes
les formalités douaniéres et autres formalités de
congé prescrites sur ce territoire.”

Or, cette résolution, fondée sur la notion de récip-
rocité, est admise par tous les pays. Sa remise en
cause porterait atteinte au climat des échanges inter-
nationaux; et elle constituerait une entrave certaine
au développement des transports aériens internation-
aux, leur infligeant des surcodits d’exploitation qui
devraient alors étre inévitablement supportés par les
passagers.

S’agissant de la France, sa pratique est conforme
a la résolution de lOACI précitée, puisque les aéro-
nefs immatriculés aux Etats-Unis, qui partent d’un
aeroport francais a destination de n’importe quel
autre Etat, sont exonérés, 4 raison du carburant et de
produits embarqués, de la taxe sur la valeur ajoutée
(TVA) par larticle 262-11-6 du code général des
imp6ts, ainsi que de la taxe intérieure sur les pro-
duits pétroliers (TIPP) par l’article 192, section VI,
du code des douanes.

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19a

Dans ces conditions, l’Ambassade de France, d’or-
dre de son Gouvernement, tient 4 appeler |’attention
des Autorités américaines sur l’importance attachée
a une solution rapide +t heureuse de ce contentieux.
Pour leur part, les Autorités francaises sont con-
vaincues de la nécessité, pour les Autorités améri-
caines, d’appuyer auprés de la Cour Supréme des
Etats-Unis, la procédure engagée par un groupe de
compagnies aériennes pour obtenir |’annulation de la
mesure prise par |’Etat de Floride.. Elles leur serai-
ent donc reconnaissantes d’engager toute action adé-
quate dans ce sens.

Les Autorités francaises n’ont pas d’objections 4
ce que le contenu de cette note soit rendu public.

L’Ambassade de France saisit cette occasion pour
renouveler au Département d’Etat l’assurance de sa
trés haute considération.

20a

EMBASSY OF THE
FEDERAL REPUBLIC OF GERMANY
WASHINGTON, D.C.

The Embassy of the Federal Republic of Germany
presents its compliments to the Department of State
and has the honor to refer to the following:

By law effective April 1983, the State of Florida
imposed a tax of 5.7 cents per gallon on all aviation
fuel sold in Florida, regardless where the fuel is
consumed. A group of airlines challenged the legality
of the tax in the courts. On June 1, 1983, the Second
Circuit Court in and for Leon County, Florida, de-
cided that foreign carriers serving Florida must be
exempted from the tax. On appeal by the State of
Florida, however, the Florida Supreme Court, on
June 14, 1984, reversed the lower court’s judgment
and held that the imposition of the tax on foreign
airlines is legal. The airlines have appealed this deci-
sion to the United States Supreme Court.

For the reasons set forth below, the Embassy of
the Federal Republic of Germany would appreciate
it if the Department of State would support the
position of the airlines by an amicus curiae brief to
the United States Supreme Court:

1. Article 24 of the Convention on International
Civil Aviation provides that fuel on board an aircraft
of a Contracting State shall be exempt from customs
duty, inspection fees or similar national or local
duties and charges. Furthermore, a_ resolution
adopted by the ICAO council on November 14, 1966
(ICAO-Doc. 8362-C/968-1966) provides exemption
from customs and all other duties for foreign air-
craft taking on board fuel and other consumable sup-
plies.

ps Wnts te Saar PP Napaairn

2la

2. During the still pending negotiations on a new
bilateral air transport agreement both delegations
achieved consensus on a new article 9, which, in
extension of Article 7 of the bilateral air transport
agreement of 1955, would grant reciprocal exemp-
tions from national taxes for all purchases of aviation
fuel. Both Contracting Parties would use their best
effort to secure exemption of the said taxes imposed
by state, regional or local authorities.

3. In the Federal Republic of Germany, foreign
airlines are exempt from taxes on the purchase of
fuel. Should the tax imposed by the State of Florida
be up’ield, the reciprocity in relation to the exemp-
tior. existing in the Federal Republic of Germany
weuld be jeopardized.

4. The State of Illinois, apparently encouraged by
the judgment of the Florida Supreme Court, already
imposed a similar ‘“Retailers’ Occupation Tax”.
Should the judgment of the Florida Supreme Court
be confirmed, numerous States of the Union might
follow suit. This would disrupt a longstanding
worldwide practice established to prevent discrim-
ination and to facilitate the operation of interna-
tional air services.

& State taxes on international aviation would pre-
vent the United States to speak with one voice in
an important are of foreign trade. This would im-
pede international trade and may be contradictory

to the Import-Export Clause of the Constitution of
the United States.

The Embassy of the Federal Republic of Germany
avails itself of this opportunity to renew to the De-

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22a

partment of State the assurance of its highest con-
sideration.
Washington, 29 November 1984

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23a

EMBAJADA DE LA REPUBLICA DE
HONDURAS
WASHINGTON, D.C. 20008

November 7, 1984
No. 118-84 EHW/DE

Excellency :

I have the honor to address Your Excellency with
respect to the matter of the aviation fuel taxes that
have been imposed on international airlines by the
State of Florida.

As Your Excellency ray know, the established in-
ternational consensus favors reciprocal exemptior
from taxes, which is expressed in Article 24 of the
Chicago Convention, as well as in ICAO resolution
document 8632-C/968.

The Honduran Civil Aeronautic Code contemplates
that foreign airlines may introduce, for their own
use, duty free fuel and lubricants providing that
the Honduran airlines are treated in a reciprocal
manner abroad. Since the Republic of Honduras does
not have a federal structure, a true reciprocity on the
part of the United States would require exemption
from taxes at both federal and state levels.

The imposition of fuel taxes by the State of Flor-
ida, as well as similar taxes imposed by other local
jurisdictions in the United States, could produce re-
taliatory measures by other foreign governments.
This action would be detrimental to the overall de-
velopment of international aviation and at the same
time create administrative, legal, and economic prob-
lems.

At the present time, many airlines are facing
financial difficulties and these fuel taxes represent a

24a

serious economic challenge for them, which could
provide an extra burden on passengers and shippers
who use their services.

Excellency, as it is understood that this case will
soon be presented to the United States Supreme Court
by a group of international airlines, on behalf of my
Government I kindly request your cooperation in ob-
taining the support of the United States Government
before the Supreme Court in favor of the principle
of reciprocal fuel tax exemption treatment.

Accept, Excellency, the assurances of my highest
consideration.

/s/ Juan Agurcia
JUAN AGURCIA
Ambassador

25a

EMBASSY OF ICELAND
2022 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20008

The Embassy of Iceland presents its compliments
to the Department of State and has the honor to re-
quest assistance in the following matter.

On several occasions the Embassy of Iceland has
had the opportunity to express to you Iceland’s con-
cern over the continuing failure of the Illinois De-
partment of Revenue to grant to Icelandair (the
designated flag carrier of Iceland, partially owned
by the government of Iceland) an exemption from
Illinois sales and use taxes. Illinois legislation ex-
empts sales to governmental bodies, and the Depart-
ment of Revenue Rule 40 had confirmed that exemp-
tion. Recently, the Illinois Department of Revenue
proposed to eliminate such exemption with respect to
those foreign air carriers enjoying its benefit, and
Iceland again objected. The Illinois Department of
Revenue has now in fact eliminated the Rule 40
exemption and is now assessing its sales and use tax
against foreign air carriers, regardless of the level
of governmental ownership. The City of Chicago
continues to levy its local taxes as well. As we have
expressed to you, this local taxation is contrary to
the tax treaties between the United States of Amer-
ica and Iceland, and is not in the best interest of
foreign commerce between our nations.

We have learned that a recent State of Florida
Supreme Court decision upheld that state’s fuel tax
on international aviation. We understand that the
carriers involved have appealed to the United States
Supreme Court in the case entitled “Lineas Aereas
Costarricenses, S.A. (LACSA), et al. v. Department

26a

of Revenue, State of Florida”. Although the Republic
of Iceland is not directly involved as a litigant, we
have noted with great interest that the Illinois De-
partment of Revenue, in support of its successful
proposal to eliminate the Rule 40 exemption, relied
heavily on this Florida decision. In addition, because
Icelandair recently has inaugurated a service into
Orlando, Florida, Iceland considers it appropriate to
express to you, and to request your assistance in
presenting, The Republic of Iceland’s support of ap-
pellant LACSA and its opposition to the imposition
of local taxes on international air traffic.

The history of agreements and treaties between
The Republic of Iceland and the United States of
America relating to the commerce between our two
nations has been characterized by mutual coopera-
tion toward a common goal, a stable economic en-
vironment:

(a) The Air Transport Agreement of 1945, based
on the International Civil Air Conference held in
Chicago, Illinois of 1944, exempted aircraft fuel from
import custom duties and use or consumption duties
for flights into or over our respective nations.

(b) In 1962, an Agreement was entered into grant-
ing relief for double income taxation on the earnings
from the operation of ships and aircraft operated un-
der the laws of our respective nations.

(c) In 1975, a Convention was entered into for
the avoidance of double taxation and the prevention
of fiscal evasion with respect to taxes on income and
capital of our citizens and the businesses of our re-
spective nations. Article 10 of the Convention specif-
ically exempted from income taxation the “operation
in international traffic of ship or aircraft” regis-

27a

tered in our respective nations. In addition, pursu-
ant to Article 17, Iceland agreed that its national
capital tax, which has no counterpart in the United
States Federal Tax Codes, would not be levied against
ships, aircraft and other assets pertaining to the
operation of such ships and aircraft.

(d) Lastly, on November 6, 1984, the United States
Treasury Department certified the Iceland’s ex-
change of information program for the new For-
eign Sales Corporation provisions of The United
States of America Tax Reform Act of 1984. We
understand that these provisions may further
strengthen the economic ties between our two nations.

The Republic of Iceland is concerned that its abil-
ity to function economically under its international
tax and trade agreements with the United States of
America has been, and may continue to be, threat-
ened by the actions taken by local taxing author-
ities in the United States of America:

(1) Both The Republic of Iceland and the United
States of America intended that the Agreements and
Treaties would promote trade and commerce. How-
ever, aS long as individual States and other local
authorities assess taxes on the international com-
mercial operations of Icelandair and other foreign
carriers, such operations become more expensive.
Indeed, if international air carriers such as Iceland-
air are forced to seek destinations in the United
States of America based in any way upon considera-
tions of local taxation of operational essentials such
as aviation fuel, the States imposing such taxes,
such as Florida and Illinois, may lose the sizeable
financial benefits to local, state and regional com-
merce which naturally result from such international
traffic.

28a

(2) Local taxation of international commerce is
inconsistent with and violates the reciprocity in-
tended by our Agreements and Treaties. Local taxa-
tion prevents the Government of the United States
of America from uniformly conducting its relation-
ships with foreign governments. This lack of con-
tinuity undermines those relationships.

The Republic of Iceland hereby formally requests
that The United States of America consider filing
an amicus curiae brief in opposition to the State of
Florida taxation of aviation fuel used in interna-
tional aviation. We understand that such brief must
be filed prior to January 10, 1985, which we under-
stand is the current deadline.

The Embassy of Iceland avails itself of this op-
portunity to renew to the Department of State the
assurances of its highest consideration.

Washington, D.C.
December 18, 1984.

29a

EMBASSY OF ISRAEL
WASHINGTON, D.C.

The Embassy of Israel presents its compliments to
the Department of State and has the honor to request
its assistance in the following matter.

In June 1984, the Supreme Court of the State of
Florida held in a lawsuit involving Lineas Aereas
Costarricenses and eleven other foreign carriers
(“LACSA litigation”) that the State’s 5.7 cents per
gallon sales tax on aviation fuel is valid. According
to information given to the Embassy of Israel, the
decision of the Florida Supreme Court is being ap-
pealed to the United States Supreme Court.

The Government of Israel wishes to express its
strong concern with respect to the decision of the
Florida Supreme Court. In addition, the Government
of Israel wishes to express its interest in the out-
come of the LACSA litigation in the United States
Supreme Court.

E] Al Israel Airlines Limited (‘‘E] Al’) is the
flag carrier of the State of Israel and is over 99%
owned by the Government of Israel. E] Al has been
designated in accordance with the terms of the Air
Transport Agreement between the U.S.A. and Israel,
13.6.1950, and the Protocol relating to the said
Agreement of 16.8.1978, and foreign air carrier per-
mits issued by the United States Civil Aeronautics
Board, to conduct international flight operations be-
tween Miami and foreign points. E] Al has in the
past engaged and may in the future engage in opera-
tions into and from Miami. While the LACSA liti-
gation directly concerns only aviation fuel taxes im-
posed by the State of Florida, it also has wider im-

30a

plications for international airlines, such as El Al,
that serve the United States.

It is the view of the Government of Israel that
taxes such as the Florida aviation fuel tax on for-
eign carriers are in conflict with the principle that
international air carriers should be exempt, [a] prin-
ciple [that] has, for many years, been well established
by international treaties and agreements to which
the United States is a party.

The United States and the State of Israel are
signatories to the Convention on International Civil
Aviation (Chicago Convention). Article 24 of the
Chicago Convention provides that fuel and aircraft
stores on board an aircraft of a contracting state
shall be exempt from customs duty, inspection fees
or similar national or local duties and charges in the
contracting states.

In addition, the International Civil Aviation Or-
ganization (“ICAO”), adopted on November 14,
1966, a Council Resolution, in furtherance of Article
24 of the Chicago Convention, which enunciates
ICAO’s policies on taxation in the field of interna-
tional air transport and which provides, in part, that
when an aircraft registered in one state departs
from an international airport of another state, the
fuel and other consumable technical supplies taken
on board for consumption during the flight shall be
exempt from all customs and other duties. The defi-
nition of “customs and other duties” set forth in that
Council Resolution includes sales, consumption and
internal duties and taxes of all kinds levied upon
fuel by any taxing authority within a state. The
United States has in general accepted the principles
enumerated in the ICAO Council Resolution and does
not itself impose any such charges. However, some
states in the United States, for example, Florida, do

3la

impose such charges. The Government of Israel con-
siders taxes such as the Florida aviation fuel tax
to be inconsistent with the aforementioned Resolution.

Moreover, paragraph (c) of Article IV of the Air
Transport Agreement of June 13, 1950, between the
United States and Israel provides that fuel and air-
craft stores retained on board civil aircraft of the
designated airline of one contracting party shall
be exempt from customs, inspection fees or similar
duties or charges in the territory of the other con-
tracting party. This provision is not confined to
national charges. It demonstrates the understanding
as [between] our two countries of the need for recipro-
cal exemption from taxes on civil aviation, which
would be seriously undermined by the imposition of
local fuel taxes by any state of the United States.

Pursuant to paragraph (g) of Article 10 of the
1978 Protocol to the Air Transport Agreement, each
party agrees to use its best efforts to secure for the
designated airlines of the other party, on a reciprocal
basis, an exemption from taxes, charges and fees
imposed by state, regional and local authorities on,
among other things, aircraft fuel and stores. The
State of Israel has no taxes similar to taxes such as
the Florida aviation fuel tax. Thus, American-owned
airlines operating to and from Israel are granted
full exemption from purchase-taxes similar to those
imposed by the State of Florida.

The Government of Israei wishes to affirm its posi-
tion that exemption from taxation on aviation fuel
is granted on a basis of reciprocity and would con-
sider the Florida sales tax a deviation from that
principle.

It is, therefore appropriate for the State of Israel
to request that the United States support the posi-

32a

_tion of the international airlines in the LACSA liti-
gation and that the Department of State undertake
to transmit the concerns of the State of Israel to the
United States Supreme Court.

Dec. 5, 1984

33a

AMBASCIATA D’ITALIA
WASHINGTON, D. C.

The Italian Embassy presents its compliments to
the Department of State and wishes to draw its kind
attention on the following matter.

Since April 1, 1988, the State of Florida has been
applying a five percent sales tax on jet fuel pur-
chased within the State, even by foreign carriers. It
seems that the State of Illinois is also about to im-
pose the same amount of tax on fuel purchases, even
though foreign carriers have made juridical appeal
against the Florida decision and are awaiting the
decision of the Supreme Court of the U.S.

Article 3 of the current Civil Aviation Agreement,
[like] those signed with many other European coun-
tries and Japan, guarantees on the basis of reciproc-
ity the total exemption from import duties, charges
and any other tax applied on fuels.

The Italian Embassy understands that the above
agreement has not been ratified by the U.S. Senate
and that, consequently, the single States maintain
their right to autonomously apply such sales taxes in
their territories. However, the Memorandum of Un-
derstanding, signed by the U.S. Government with
various countries aimed at rectifying the conflict of
interests between the Federal Government and the
States of the Union, guarantee to the countries which
signed the Memorandum the U.S. government’s sup-
port and the application of the non-discriminatory
clause (Most Favorite Nation).

In view of the above, and since Italy does not ap-
ply any sales taxes to U.S. aircraft re-fueling in
Italy, the Italian Government would appreciate it if
the Department of State would use its good offices in

34a

order that the appropriate U.S. authorities will rec-
tify the situation as soon as possible.

The Italian Embassy welcomes the opportunity to
renew to the Department of State the expressions of
its highest esteem and consideration.

Washington, D.C.
October 2, 1984

35a

EMBASSY OF JAPAN
WASHINGTON

January 11, 1985

The Embassy of Japan presents its compliments
to the Department of State and, with regard to the
recent development in the state of Florida in impos-
ing a tax or 5.7 cents per gallon on aviation fuel sold
and loaded in the state for the purpose of interna-
tional air transportation from April 1983, wishes un-
der instruction from its home Government, to request
the Government of the United States to take appro-
priate measures so that the fuel for use in inter-
national air transportation in the state of Florida
will be exempted from tax in view of the following
points:

(1) Article 6 of the Civil Air Transportation
Agreement between Japan and the United States
holds that both parties shall be exempted from sales
tax on such goods as fuel and lubricating oils for the
use in international air transportation purchased and
loaded in the other insti territory on the basis of
reciprocity ;

(2) In the resolution of the International Civil
Aviation Organization (ICAO), it is provided that
such a fuel tax as that by the state of Florida should
be eliminated on the basis of reciprocity. Therefore,
the Government of Japan regards such taxation “by
the state of Florida as inconsistent with this Resolu-
tion;

(3) The Government of Japan believes that in en-
couraging development of an international exchange
of people and commerce, it has become an interna-
tionally established practice to exempt [from] tax fuel
used for the purpose of international air transport.

36a

The Government of Japan wishes to point out that
Florida’s sales tax on such fuel impedes the sound
development of international transportation.

Moreover, the Embassy wishes to call to the atten-
tion of the Department of State a similar appeal
made on December 9, 1983, in response to the imposi-
tion of a similar kind of sales tax by the state of
Illinois, and further to the action of Latin American
airlines challenging the right of the state of Flor-
ida to impose such a tax through a lawsuit, which is |
currently under review by the United States Supreme
Court.

The Embassy avails itself of this opportunity to
renew to the Department of State the assurances of
its highest consideration.

37a
[EMBASSY OF MEXICO]
[Unofficial Translation ]

The Embassy of Mexico presents its compliments
to the Department of State and would like to call its
attention to the following matter.

The State of Florida established a tax of 5.7 cents
per gallon on all aviation fuel sold in its territory
from April ist. 1983 onwards. For this reason, a
group of airlines, including Mexicana and Aeroméx-
ico, brought the case to a State court which ruled
that foreign air-freighters operating in the State of
Florida should be exempted from the aforementioned
fuel-tax. However, the administrative State Govern-
ment authorities of Florida appealed this decision to
the State Supreme Court, which reversed the lower
court ruling, endorsing the right to levy taxes on the
fuel used by international airlines. Consequently, the
airlines affected decided to appeal to the Supreme
Court of the United States. The case is known as
“Lineas Aéreas de Costa Rica, S.A. (LACSA) et al.
vs. Department of Revenue, State of Florida.”

This Embassy would like to express the serious
concern of the Government of Mexico over this situa-
tion, since it is of the opinion that the decision made
by the State of Florida is in disagreement with the
contents of article 7 of the Agreement in force be-
tween the Governments of the United Mexican States
and the United States of America on the subject of
air-transportation. This measure is also inconsistent
with the provisions of the Chicago Convention and the
resolutions of the International Civil Aviation Coun-
cil, specifically that of November 4, 1966 (ICAO doc-
ument 8632-C/968). Moreover, this Embassy con-
siders that if the legality of the fuel-tax levied by

38a

the State of Florida were to be sanctioned, this would
result in problems of multiple taxation.

Because of the aforementioned reasons, the Em-
bassy of Mexico request, through the mediation of
the Department of State, the support of the Govern-
ment of the United States for the case of the airlines
in question to be tried by the Supreme Court of Jus-
tice, suggesting for this purpose to use an amicus
curiae procedure. It is the understanding of this
Embassy that the deadline for the Department of
Justice to act as amicus curiae would be January 10,
1985.

The Embassy of Mexico avails itself of this oppor-
tunity to convey to the Department of State the as-
surances of its kind consideration.

Washington, D.C. December 11, 1984.

ee -

39a
[EMBASSY OF THE NETHERLANDS]

EA-14184

The Royal Netherlands Embassy presents its com-
pliments to the Department of State and has the
honour to request the Department’s attention to the
following.

The State of Florida imposed, effective April 1,
1983, a tax of 5.7 cents per gallon on all aviation
fuel sold within its jurisdiction. Under this legisla-
tion, all fuel purchased in Florida is taxable, even if
it is consumed outside of that state or, indeed, out-
side of the United States.

Lineas Aereas Costarricenses, S.A. and other for-
eign air carriers from the Caribbean and Central
and South America filed a lawsuit in the Florida
courts challenging the legality of this Florida state
tax under the United States Constitution. On June 1,
1983, the court before which the initial hearings on
this lawsuit were held issued a decision concluding
that foreign carriers serving Florida must be ex-
empted from this tax. The State of Florida appealed
this decision to the Florida Supreme Court, which on
June 14, 1984 reversed the lower court’s determina-
tion and held that imposition of the tax on inter-
national airlines is proper. The plaintiffs have ap-
pealed the decision of the Florida Supreme Court to
the United States Supreme Court.

The Royal Netherlands Embassy wishes to inform
the Department of State of the grave concern of the
Netherlands Government with regard to the afore
mentioned imposition of an aviation fuel tax by the
State of Florida on international aviation. In this
context, the Government of the Netherlands would

40a

like to observe that said tax is inconsistent with the
Air Transport Agreement between the Government of
the United States of America and the Government of
the Kingdom of the Netherlands of April 3, 1957,
Article 7 (d) of which states that “fuel, lubricating
oils, other consumable technical supplies, spare parts,
regular equipment, and stores taken on board aircraft
of the airlines of one Contracting Party in the tervri-
tory of the other and used in international! services
shall be exempt on a basis of reciprocity from cus-
toms duties, excise taxes, inspection fees and other
similar national duties, taxes and charges, even
though such supplies be used or consumed by such
aircraft on flights in that territory”.

The Netherlands Government is of the opinion, fur-
thermore, that the referred Florida state tax is con-
trary to the established international standard of rec-
iprocity. More specifically, reference may be made to
the Resolution of the Council of the International
Civil Aviation Organization of No mber 14, 1966,
in particular Section I, paras. 1 and 4 thereof, which
stipulate that “when an aircraft registered in one
State departs from an international airport of an-
other State either for another customs territory of
that latter State of for the territory of any other
State, the fuel, lubricants and other consumable tech-
nical supplies taken on board for consumption during
the flight shall be furnished exempt from all customs
and other duties’. “The expression ‘customs and du-
ties’ shall include import, export, excise, sales, con-
sumption and internal duties of all kinds levied upon
fuel, lubricants and other consumable technical sup-
plies by any taxing authority within a State’’.

The Netherlands Government has consistently
manifested its opposition to any infringement of the

A4la

principle that international aviation should be ex-
empted from taxes or other impositions. The Florida
state tax under reference, if maintained, would not
only be highly undesirable in itself from this point
of view, but would, moreover, constitute a precedent
for possible similar action by other foreign govern-
ments.

The Netherlands Government has been informed
that the aforementioned plaintiffs will soon present
their case to the United States Supreme Court. For
the reasons set out above, the Netherlands Govern-
ment urges the Government of the United States to
give formal! support to the position of the plaintiffs
in this litigation by filing an amicus curiae brief to
that effect with the United States Supreme Court.
It is the understanding of the Netherlands Govern-
ment that the deadline for submission of said brief in
this case is presently set at January 10, 1985.

The Royal Netherlands Embassy, whilst thanking
the Department of State for its attention to this im-
portant matter, avails itself of this opportunity to
renew to the Department of State the assurances of
its highest consideration.

Washington, D.C.
December 3, 1984

42a

ROYAL NORWEGIAN EMBASSY
WASHINGTON, D.C.

The Royal Norwegian Embassy, acting also on be-
half of the Royal Danish Embassy and the Swedish
Embassy, presents its compliments to the Department
of State, and has the honour to draw the attention
of the Department to the following matter:

The State of Florida on 1 April 1983 imposed a
5.7 per cent sales tax within the territory of its ju-
risdiction on jet fuel purchased by foreign airlines
for international transport. The legality of this deci-
sion has since been challenged by a number of for-
eign airlines serving the US market, and the matter
has been appealed to the United States Supreme
Court with a request to review and reverse the deci-
sion of the State Government.

Already the action taken by the State of Florida
has been referred to as a precedent by other local
jurisdictions within the United States, contemplating

similar measures with regard to taxation of foreign -

airlines.

The Governments of Denmark, Norway and Sweden
have noted these developments with a growing con-
cern. The three governments would in this context
like to underline that American-owned airlines, as
well as other foreign owned airlines, operating routes
to and from Denmark, Norway and Sweden are in
these countries granted full exemption from taxes
and duties on similar purchases of fuel for interna-
tional transport.

Such measures as taken by the State of Florida
will not only be detrimental to the overall develop-
ment of international aviation, but would also jeop-
ardize the international consensus and standards of

i

43a

reciprocity in this field, as well as the equilibrium of
the taxation regime for civil aviation as now applied
between our respective countries.

A further reason for the concern of the Scandi-
navian Governments is the possible effect such an ac-
tion might have on other countries which might fol-
low suit, with the ensuing apparent risk of seriously
damaging the fundamental principles of avoidance of
double taxation of air transport companies.

The Governments of Denmark, Norway and Swe-
den would therefore like to express their strong con-
cern with regard to these measures, and urge the
Government of the United States to use its good offices
in order that the appropriate authorities will rectify
the situation.

The Royal Norwegian Embassy avails itself of this
opportunity to renew to the Department of State the
assurances of its highest consideration.

Washington, D.C., 11 December, 1984.
No. 106/84

44a

EMBAJADA DE PANAMA
WASHINGTON, D.C. 20008

E.P.E.A.U. - 507 D
December 12, 1984

The Embassy of Panama presents its compliments
to the Honorable Department of State and has the
honor to refer to the aviation fuel taxes that have
been imposed on international airlines by the State
of Florida through its Senate Bill 8A, which was
made effective on April 1, 1983.

The Government of Panama is deeply concerned
with this matter, as the proposed taxes fall within
Article III, Paragraph C of the Agreement on Air
Transport Services Between the United States of
America and the Republic of Panama, which was
signed at Panama on March 31, 1949, which clearly
indicates the following:

“The fuel, lubricating oils, spare parts, regular
equipment and aircraft stores retained on board
civil aircraft of the airlines of one contracting
party authorized to operate the routes and serv-
ices described in the annex shall, upon arriving
in or leaving the areas with respect to which the
other contracting party has jurisdiction, be ex-
empt from customs, inspection fees or similar
duties or charges, even though such supplies be
used or consumed by such aircrafts on flights in
those areas.”

On the other hand, the established international
consensus favors reciprocal exemption from taxes,
which is expressed in Article 24 of the Chicago Con-
vention. Also, aviation fuel taxes such as those im-

45a

posed by the State of Florida create a substantial
risk of international multiple taxation, and par-
ticularly, retaliatory measures by other nations. At
the present time many international airlines are
facing severe financial difficulties, and the fuel taxes
will represent a serious economic burden for them.

Being that many airlines have appealed this deci-
sion to the United States Supreme Court, the Em-
bassy of Panama would appreciate very much if the ~
Honorable Department of State would support the
position of these airlines by an “Amicus Curiae”
brief to the United States Supreme Court.

The Embassy of Panama avails itself of this op-
portunity to renew to the Honorable Department of
State the assurances of its highest consideration.

46a

SPANISH EMBASSY
WASHINGTON, D.C.
No. 301

The Embassy of Spain presents its compliments to
the Department of State and has the honor to refer
to the State of Florida Senate Bill 8A, about the
introduction of a Tax concerning fuel purchased by
airlines.

The Government of Spain considers that the pro-
posed taxes fall within Article 7 of the Air Transport
Agreement between the Government of the United
States of America and the Government of Spain of
August 3rd, 1973. In particular Article 7(d) states
that “Fuel, lubricating oils, other consumable tech-
nical supplies, spare parts, regular equipment, and
stores taken on board aircraft of the airlines of one
contracting party in the territory of the other and
used in international services shall be exempt on a
basis of reciprocity from customs duties, excise taxes,
inspection fees and other similar national duties,
taxes or charges, even though such supplies be used
or consumed by such aircraft on flights in that
territory”. This paragraph covers the taxes listed
in the Notice of Proposed Amendment—which ac-
cordingly are not consistent with the Air Transport
Agreement.

The Government of Spain may also refer to the
Resolution of November 14, 1966 of the Council of
the International Civil Aviation Organization. In
particular Section 1, paragraphs 1 and 4 state that:

“When an aircraft registered in one State de-
parts from an international airport of another
State either for another customs territory of that
latter State or for the territory of any other

47a

State, the fuel, lubricants and other consumable
technical supplies taken on board for consump-
tion during the flight shall be furnished exempt
from all custcms and other duties”.

“The expression ‘customs and other duties’ shall
include import, export, excise, sales, consumption and
internal duties of all kinds levied upon the fuel,
lubricants and other consumable technical supplies by
any taxing authority within a State”. Consequently,
the proposals of the State of Florida are inconsistent
with the aforementioned Resolution.

The Government of Spain therefore request that
the Department of State urge the State of Florida
to reconsider its proposals in the light of the United
States obligations and commitments.

The Embassy of Spain avails itself of this oppor-
tunity to renew to the Department of State the ex-
pression of its highest consideration.

Washington, D.C., November 30th, 1984

48a
[EMBASSY OF SWITZERLAND]

The Embassy of Switzerland presents its compli-
ments to the Department of State and has the honor
to refer to the recent amendment of the tax law of
the State of New York about franchise taxes on
transportation corporations.

This new legislation, amending the tax law, will
impose on airlines serving the State of New York
a tax on capital stock and gross earnings, thus re-
moving the long-standing exemption from such tax
granted to foreign airlines as Swissair. The Swiss
authorities are concerned about such taxation of
Swissair which would be a considerable departure
from the worldwide accepted principle that enter-
prises should be taxed only by the State in which the
management of the enterprise actually is located. It
would aiso be contradictory to the ICAO policies on
taxation in the field of international air transport
stated in the Resolution on taxation of the income of
international air transport enterprises and on taxa-
tion of aircraft adopted by the Council of ICAO on
November 14, 1966 (ICAO Doc 8632-C/968 Section
III). Clause No. 1 of this Resolution provides that
Contracting States shall, to the fullest possible extent,
grant reciprocally exemptions from taxation on the
income, property taxes and capital levies or other
similar taxes.

The introduction of the new tax would be likely
to cause serious problems for the aviation industry
and set off a chain reaction around the world which
would but add to the present difficulties of the in-
dustry.

Finally, the Swiss authorities wish to draw the
attention of U.S. authorities te the fact that the fran-

49a

chise tax of the State of New York could have the
effect that different Cantons (States) of Switzerland
may take the necessary steps to introduce a similar
tax to counter-balance the New York legislation.

In view of the foregoing, the Swiss authorities
appreciate the consideration the Department of State
will give to this matter. They ask the Department of
State to kindly transmit the content of this note to
the competent authorities of the State of New York.
The Swiss authorities trust that the tax exemption
for air carriers will be restored as was done for the
shipping companies.

The Embassy of Switzerland avails itself of this
opportunity to renew to the Department of State the
assurances of its highest consideration.

Washington, D.C.,
March 3, 1982

50a
EMBASSY OF SWITZERLAND

The Embassy of Switzerland presents its compli-
ments to the Department of State and has the honor
to transmit the following:

The Swiss authorities have been informed of a law-
suit currently pending before the United States Su-
preme Court which involves the legality under the
United States Constitution of a tax imposed by the
State of Florida on aviation fuel purchased by foreign
airlines. In this context the Embassy of Switzerland
would like to refer to its note of December 19, 1983,
and make the following statement: The Air Transport
Agreement of August 3, 1945, between the United
States and Switzerland includes in Article 3 tax ex-
emption clauses for introduced and retained fuel.
This regulation was consistent with the practice exer-
cised shortly after World War II. Today it is gener-
ally recognized that tax exemption is also granted for
uplifted fuel. Accordingly, this established practice
was enrolled in the newer bilateral air agreements as
concluded by the United States and also by Switzer-
land. :
Furthermore, the Swiss authorities wish to point
out that U.S. carriers operating to and from Switzer-
land have never had, up to now, to pay such taxes and
duties. In order to prevent discriminatory practices
and to assure equality of treatment of U.S. carriers
in Switzerland and of Swiss airlines in the United
States, the Swiss authorities consider it necessary
that reciprocal tax exemption be granted to Swiss
airlines.

The Swiss authorities are concerned about the pos-
sibility of creating a precedent by confirming the
legality of the Florida Aviation Tax Decision by the
United States Supreme Court.

5la

For these reasons the Swiss authorities are opposed
to such taxes and would be grateful :f the Depart-
ment of State would submit an amicus curiae brief to
the United States Supreme Court in the sense of the
foregoing statement.

The Embassy of Switzerland avails itself of this
opportunity to renew to the Department of State the
assurances of its highest consideration.

Washington, D.C.,
November 30, 1984

52a

EMBASSY OF THE REPUBLIC OF TRINIDAD
AND TOBAGO

1708 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20036

The Embassy of the Republic of Trinidad and
Tobago presents its compliments to the Department
of State of the United States of America and has the
honor to refer to the Air Transport Services Agree-
ment dated February 11, 1946 between the United
States and the United Kingdom, an Agreement dated
November 22, 1961 between the United States and
the United Kingdom providing for air routes between
the West Indies and the United States, and an Ex-
change of Notes dated September 27, 1962 and Oc-
tober 8, 1962 between the United States and Trini-
dad and Tobago to continue the application of certain
agreements (referenced above) to scheduled services
between the United States and the Caribbean area
by United States and Trinidad and Tobago airlines.
Particular attention is called to Article 3(2), (3) of
the first document which concerns the reciprocal ex-
emption of each party’s air carriers from the pay-
ment of fuel and certain other taxes.

It has come to the attention of the Government of
the Republic of Trinidad and Tobago that the State
of Florida has enacted an aviation fuel tax which is
applicable te fuel purchased by both domestic and
international air carriers, including Trinidad and
Tobago Airways Corporation (“BWIA”), the flag
carrier of Trinidad and Tobago. It is also under-
stood that similar taxes either have been enacted or
are being considered for enactment by a number of
other states.

eee ee ee ee ee ae Le oS eee ee

53a

The Government of the Republic of Trinidad and
Tobago wishes to express its grave concern over the
application of such taxes to fuel purchased in the
United States by international air carriers such as
BWIA. The Government of the Republic of Trinidad
and Tobago exempts United States air carriers serv-
ing Trinidad and Tobago from aviation fuel taxes
and other taxes imposed at all levels of government.
This exemption is premised upon reciprocal tax ex-
emption granted by the United States to the flag air
carrier of Trinidad and Tobago. Moreover, the ex-
emption is consistent with the well-established interna-
tional consensus favoring reciprocal exemption from
taxes which is expressed, for example, in Article 24
of the Chicago Convention and the resolutions of the
ICAO Council on this subject, dated November 14,
1966. The Government of the Republic of Trinidad
and Tobago believes that the taxation of international
airlines by states within the United States is incon-
sistent with this international standard of reciproc-
ity as well as the standard of reciprocity which ex-
ists between Trinidad and Tobago and the United
States.

The Government of the Republic of Trinidad and
Tobago believes further that the taxation of BWIA
by states within the United States violates the spirit
if not the letter of Article 3(2), (3) of the Air
Transport Agreement dated February 11, 1946 be-
tween the United States and the United Kingdom
which governs air transport relations between the
United States and Trinidad and Tobago. In addition
to the specific exemptions set forth in Article 3(2),
(3), a more general policy of reciprocal exemption
from taxes of all sorts has been established between
the two governments. The tax enacted by the State

54a

of Florida constitutes a serious threat to this estab-
lished pattern of reciprocal exemption.

The Government of the Republic of Trinidad and
Tobago believes that true reciprocity on the part of
the United States requires air carrier tax exemptions
at both the federal and local levels. The failure of the
United States to ensure such complete exemptions
may be considered a failure of reciprocity under ap-
plicable bilateral agreements, and could moreover
constitute a precedent for similar action by other for-
eign governments.

The Government of the Republic of Trinidad and
Tobago understands that the issue of state taxation
of aviation fuel will shortly be presented to the
United States Supreme Court by a group of interna-
tional air carriers, including BWIA. The Govern-
ment of the Republic of Trinidad and Tobago is ad-
vised that participation by the United States Govern-
ment in this litigation in support of the position ad-
vanced by the international air carriers will be very
important, perhaps essential, in the interest of the
air carrier appellants. The Government of the Re-
public of Trinidad and Tobago understands further
that it is not uncommon for the United States Gov-
ernent to join, as amicus curiae, the effort of private
litigants in similar situations. The Government of
Trinidad and Tobago urges the Department of State
of the United States to give formal support to the
position of the international air carriers in this liti-
gation through the filing of a brief amicus curiae
with the court.

The Government of the Republic of Trinidad and
Tobago has no objection to the public release of this
Note.

55a

The Embassy of the Republic of Trinidad and To-
bago avails itself of this opportunity to renew to the
Department of State of the United States of America
the assurances of its highest consideration.

10th December, 1984
WASHINGTON, D.C.

56a
EMBASSY OF THE UNITED KINGDOM
NOTE NO 190

Her Britannic Majesty’s Embassy presents its com-
pliments to the Department of State and has the
honour to refer to the sales tax on aviation fuel for
use in international air transportation which has
been imposed by the state of Florida. This tax was
challenged by a group of international airlines in the
Leon County Circuit Court which decided, on 1 June
1983, that the tax was inconsistent with the obliga-
tions of the United States Government contained in
its bilateral air transport agreements, and concluded
that foreign carriers were entitled to an exemption
from the tax. The decision of the Circuit Court was
reversed by the Florida Supreme Court without that
court having had an opportunity to consider a letter
from the Deputy Assistant Secretary of State for
Transportation and Telecommunications expressing
concern about the serious foreign relations problems
that the tax would cause unless provision was made
to exempt foreign airlines from it. The plaintiff air-
lines are appealing the decision to the United States

Supreme Court. .

Article 8(5) of the United Kingdom/United States
Air Services Agreement provides that each contract-
ing party shall use its best efforts to secure for the
designated airlines of the other contracting party on
a reciprocal basis an exemption from taxes, charges

57a

and fees imposed by state, regional and local author-
ities on, inter alia, fuel supplied in the territory of
the first contracting party for use in the aircraft of
those airlines engaged in international air services.
The United States Government will also be aware
that fuel purchased in the United Kingdom and used
in international transportation by the designated air-
lines of the United States are not assessed by United
Kingdom regional or local authorities for taxation
purposes. In view of these considerations, and be-
cause the Florida Supreme Court did not have the
opportunity to consider the policy of the federal au-
thorities before it reversed the Circuit Court decision,
Her Majesty’s Government requests the United States
Government to present their views to the United
States Supreme Court in the form of an amicus
curiae brief, the deadline for the filing of which is
believed to be 10 January 1984.

The Embassy avails itself of this opportunity to re-
new the assurance of its highest consideration.

British Embassy
Washington DC

10 December 1984

58a
[EMBASSY OF YUGOSLAVIA]

No. 109

The Federal Secretariat for Foreign Affairs of the
Socialist Federal Republic of Yugoslavia presents its
compliments to the Embassy of the United States of
America and notes with interest and great concern
the information received about the intention of the
State of Illinois to remove sales tax exemption on fuel
and food sold to foreign air carriers on its territory.

In the simplest terms, the Yugoslav authorities ob-
ject in principle to a proposal stemming from a uni-
lateral action, which could well be in conflict with
ICAO Council Recommendation as well as with the
letter and the spirit of Article 7, paragraph C of the
existing bilateral Air Transport Agreement between
our twe countries, significantly affecting financial op-
erations of the Yugoslav-designated air carrier which
currently enjoys the aforesaid exemption.

Therefore, the Federal Secretariat for Foreign Af-
fairs urges the Department of State to take neces-
sary steps for the mentioned intention to be with-
drawn, in conformity with the international comity,
and avails itself of this opportunity to renew to the
Embassy of the United States of America the assur-
ances of its highest consideration.

Belgrade, January 20, 1984

EMBASSY OF THE UNITED
STATES OF AMERICA

BELGRADE

xv U. S. GOVERNMENT PRINTING OFFICE; 1985 461531 10279

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0292%3A5. Public record. Not legal advice.