Central Transport, Inc. v. Tracy

Per Curiam. Appellants contend they are not subject to sales and use tax assessments, but are entitled to exemption under the Commerce Clause of the United States Constitution, and R.C. 5739.02(B)(10) and 5741.02(C)(3). Appellants claim that the activities in question have no substantial nexus with the state of Ohio, since the taxed items are not stored or even opened in Ohio, but are placed almost immediately on an outgoing truck headed out of state. Thus, appellants claim, the assessments are not within Ohio’s taxing power under the federal Commerce Clause. The BTA, citing Norandex, Inc. v. Limbach (1994), 69 Ohio St.3d 26, 630 N.E.2d 329, found that the vendors of the items in question “transferred title, or possession, or both, of the purchased items to Central * * * at the Toledo terminal” and Central “proceeded to exercise [its] rights of ownership and possession relative to storage, [or] use, * * * while under the various governmental protections of the State of Ohio, upon taking such title or possession, or both, at the Toledo terminal [which] constitute^] a legal basis for the tax assessments.” Accordingly, the BTA affirmed the sales and use tax assessments. Our review leads us to consider the four-part test set forth in Complete Auto Transit, Inc. v. Brady (1977), 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326. According to Complete Auto Transit, a tax does not violate the Commerce Clause if (1) the taxed activity has a substantial nexus with the taxing state, (2) the tax is fairly apportioned, (3) the tax does not discriminate against interstate commerce, and (4) the tax is fairly related to benefits provided by the state. Appellants argue that the required “substantial nexus” is absent in this case. We disagree. In Norandex, supra, 69 Ohio St.3d at 29, 630 N.E.2d at 332, we examined the taxpayer’s claim that it did not exercise any right or power incidental to ownership while the goods in question were in Ohio, and that the activity being taxed did not have a substantial nexus with Ohio. We concluded that since Complete Auto Transit was decided, “we have not needed to consider whether the property ‘came to rest’ in Ohio; instead, we must find a taxable event, in this case a use of the property, and apply the Complete Auto Transit test.” In analyzing the instant claim, we must determine whether the taxpayers exercised rights of ownership and control over the property, and whether this exercise occurred in Ohio. In this case, the evidence establishes that Central did exercise rights of ownership in Ohio. Central took title to and possession of the [298] property at the dock facility in Toledo. In dealing with the disputed property, Central’s employees moved the items from shipping pallets, removed coverings as necessary, inspected the items, and moved them to appropriate outgoing vehicles in accordance with prior instructions, or by instructions given by the dock supervisors. That all of this activity may have consumed only a few minutes, and in all cases less than a few hours, is of no significance. This exercise of rights over the property is the taxable event, and this exercise occurred in Ohio, providing a substantial nexus with Ohio. The decision of the BTA is not unreasonable or unlawful, and it is affirmed. Decision affirmed. Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ., concur. Wright, Pfeifer and Cook, JJ., dissent.