Texas Attorney General Opinion: JM-207 Page: 4 of 10
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Honorable Bob Bullock - Pale- 4 (JM-207)
equally on tha: other similarly situated
constituents of the State.
United States v. County of Fresno, 429 U.S. 452, 462 (1977). At
issue, then, is whether the federal government or those with whom it
does business have been s:Ligled out for imposition of the tax. We
conclude that they have not.
The proper test to be invoked in order to determine discrimina- 1
tion has not always been ,:lear, nor have the cases been consistent.
The Supreme Court itself ,has recently indicated that cases in this
field have "been marked from the beginning by inconsistent decisions
and excessively delicate dIicisions." United States v. New Mexico,
supr, at 730. See Anna s. 2 L.Ed.2d 441, 96 L.Ed. 263; see
generally, Annot. 44 L.Ed.0c 692. For example, one line of cases set
forth an "economic burden" test, under which the validity of the tax
turned upon whether a tax imposed on a contractor was a substantial
burden upon the government. See, e.g., Helvering v. Mountain
Producers Corporation, 303 U.S. 376 (1938); James v. Dravo Contracting
Company, 302 U.S. 131 (1937). Other cases imposed a "legal incidence
test, which determined whether the interest taxed is that of the
federal government or that of the contractor. See, e.g., Unitcd
States v. County of Allegheny, 322 U.S. 174 (1944); Trinityfarm
Construction Company v. Groejean, 291 U.S. 466 (1934). Regardless of
the test imposed, it is clear that "in recent years the Supreme Court
has curtailed sharply the doctrine of implied delegated immunity."
United States v. County if Allegheny, supra, at 177. See United
States v. Detroit, 355 U. 466 (1958); Oklahoma Tax Commission v.
Texas Company, 336 U.S. 342 (1949). Two recent Supreme Court cases,
however, have removed much of the confusion and enunciated a clear
test.
In United States v. New Mexico, 455 U.S. 720 (1982), the court
restated the rules that implied constitutional immunity may not be
conferred merely because the tax has an effect on the United States or
even because the federal government bears the entire economic burden
of the levy (citing Alabanm v. King & Boozer, supra); or because the
tax falls on the earnings of a contractor providing services to the
federal government (citing James v. Dravo Contracting Company, supra);
or because the tax is levied on the use of federal property in private
hands (citing United Statesv. City of Detroit, supra); or even in an
instance in which the pr-iv'ate entity is using federal government
property to provide the government with goods (citing United States v.
Township of Muskegon, supr; City of Detroit v. Murray Corporation,
355 U.S. 489 (1958)) or services (citing Curry v. United States, 314
U.S. 14 (1941); United Sta:sys v. Boyd, supra). Nor may immunity be
conferred when a contractor is purchasing property for the federal
government, even if title to the goods vests in the United States
immediately upon shipment by the seller (United States v. Newp, 933
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-207, text, October 4, 1984; (https://texashistory.unt.edu/ark:/67531/metapth272647/m1/4/?q=%221984~%22: accessed August 15, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.