International Thomson Publishing, Inc. v. Tracy

Per Curiam. We find the BTA’s decision is reasonable and lawful and, thus, affirm it. South-Western first argues that no taxable event occurs when it withdraws the exam copies from its resale inventory and gives them to out-of-state recipients. Nevertheless, we agree with the commissioner that South-Western’s handling of these books in Ohio constituted a taxable event. In Norandex, Inc. v. Limbach (1994), 69 Ohio St.3d 26, 29-30, 630 N.E.2d 329, 332, we held, for cases involving the dormant Commerce Clause, that: “[W]e must find a taxable event, in this case a use of the property, and apply the Complete Auto Transit test. D.H. Holmes Co., Ltd. v. McNamara (1988), 486 U.S. 24, 31, 108 S.Ct. 1619, 1623, 100 L.Ed.2d 21, 27. “R.C. 5741.02(A) levies ‘an excise tax * * * on the storage, use, or other consumption in this state of tangible personal property or the benefit realized in the state of any service provided.’ R.C. 5741.01(C) defines: ‘use’ as ‘the exercise of any right or power incidental to the ownership of the thing used.’ ” As the BTA found, a taxable event occurred here. Probative evidence supports the BTA’s findings that South-Western received orders for exam copies in Ohio. In fact, it controlled the ordering of exam copies from Ohio. It established a data base with which to distribute the exam copies, and it centrally ordered books from Ohio. South-Western received and held the books in its Ohio warehouse and distributed the books to the recipients. To distribute them it removed the books from storage, printed labels, affixed the labels to packages containing the exam copies, and arranged for the delivery of the packaged books to the recipients. [418] These activities mirror what Norandex did with its sample cases. In Norandex, branch employees requested the Ohio headquarters to purchase sample cases, and Norandex purchased the cases centrally from its Ohio office. “Norandex held the sample cases, decided the sequence in which the branches would receive the cases, removed the cases from the pallets to place on trucks, and directed a carrier to deliver the cases to the branch offices.” 69 Ohio St.3d at 30, 630 N.E.2d at 333. As we found in Norandex, South-Western exercised rights or powers incidental to ownership of the exam copies in Ohio and occasioned a taxable event in Ohio. Moreover, we have held these types of activities subject to the use tax since Woman’s Internatl. Bowling Congress, Inc. v. Porterfield (1971), 25 Ohio St.2d 271, 54 O.O.2d 383, 267 N.E.2d 781, paragraph three of the syllabus. Thus, the commissioner, contrary to South-Western’s contention, could assess tax against the use of these books without further authority from amendments to R.C. 5741.01(C) or 5741.02(D). See Midwest Foundation Indep. Physicians Assn. v. Tracy (1996), 74 Ohio St.3d 221, 658 N.E.2d 263. We also reject South-Western’s argument that R.C. 5741.01(G)(4) provides an alternate purchase price for the use of these copies. This provision states that the price for an item, held in inventory in Ohio for sale or lease that is temporarily stored, used, or otherwise consumed in a taxable manner, is the value of the temporary use. Here, though, the use of the books is not temporary; the use is permanent, since South-Western has relinquished ownership over the copies by giving them to teachers and professors. Next, South-Western argues that the tax fails the substantial nexus, the nondiscrimination, and the fair-apportionment branches of the Complete Auto Transit test. We disagree. In Complete Auto Transit, Inc. v. Brady, 430 U.S. at 279, 97 S.Ct. at 1079, 51 L.Ed.2d at 331, the United States Supreme Court declared that it has “sustained a tax against Commerce Clause challenge when the tax is applied to an activity ■with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.” Under Norandex, the taxed activity in this case, the use of the exam copies in Ohio, has a substantial nexus with Ohio. South-Western, as the BTA found, established the ordering system and controlled it from Ohio, centrally ordered the books in issue, received and stored them in Ohio, removed them from inventory, and arranged to deliver them inside and outside Ohio. These taxed activities are economically significant activities, they occurred in Ohio, and they satisfy the substantial nexus prong. [419] Under the non-discrimination branch, South-Western argues that the purchase of Ohio-produced exam copies would be exempt from the sales tax under R.C. 5739.02(B)(21), and hence the use tax under R.C. 5741.02(C)(2), and that to fail to exempt purchases of exam copies produced by non-Ohio publishers discriminates against these latter purchases. R.C. 5739.02(B)(21) states: “The tax does not apply to the following: “(21) Sales of tangible personal property, manufactured in this state, if sold by the manufacturer in this state to a retailer for use in his retail business outside of the state and if possession is taken from the manufacturer by the purchaser within this state for the sole purpose of immediately removing the same from this state in a vehicle owned by the purchaser[.]” This exemption does not describe South-Western’s operations. South-Western purchases books and stores them in Ohio pending distribution. It does not immediately remove them from Ohio in its vehicles. Thus, the tax does not discriminate on this basis. Finally, as to the fair-apportionment prong, Oklahoma Tax Comm. v. Jefferson Lines, Inc. (1995), 514 U.S. 175, 185, 115 S.Ct. 1331, 1338, 131 L.Ed.2d 261, 271-272, explained the required inquiry in some detail: “[The court assesses] any threat of malapportionment by asking whether the tax is ‘internally consistent’ and, if so, whether it is ‘externally consistent’ as well. * * * Internal consistency is preserved when the imposition of a tax identical to the one in question by every other State would add no burden to interstate commerce that intrastate commerce would not also bear. This test asks nothing more about the degree of economic reality reflected by the tax, but simply looks to the structure of the tax at issue to see whether its identical application by every State in the union would place interstate commerce at a disadvantage as compared with commerce intrastate. A failure of internal consistency shows as a matter of law that a State that is attempting to take more than its fair share of taxes from the interstate transaction, since allowing such a tax in one State would place interstate commerce at the mercy of those remaining States that might impose an identical tax. * * * “External consistency, on the other hand, looks not to the logical consequences of cloning, but to the economic justification for the State’s claim upon the value taxed, to discover whether a State’s tax reaches beyond that portion of value that is fairly attributable to economic activity within the taxing State. * * * Here, the threat of real multiple taxation (though not by literally identical statutes) may indicate a State’s impermissible overreaching. * * * ” [420] As to internal consistency of the tax in the instant case, if every state were to impose a tax identical to the instant tax on this activity, a person exercising a power over property in giving the property away, only one tax would be imposed. South-Western can exercise this power only once; it has no power over property it has already given away. Thus, the instant tax survives the internal consistency test. As to the external consistency test, Jefferson Lines continues: “A sale of goods is most readily viewed as a discrete event facilitated by the laws and amenities of the place of sale, and the transaction itself does not readily reveal the extent to which completed or anticipated interstate activity affects the value on which a buyer is taxed. We have therefore consistently approved taxation of sales without any division of the tax base among different States, and have instead held such taxes properly measurable by the gross charge for the purchase, regardless of any activity outside a taxing district that might have preceded the sale or might occur in the future.” Id. at 186, 115 S.Ct. at 1339, 131 L.Ed.2d at 272-273. We have consistently ruled the use tax to be externally consistent, and, thus, fairly apportioned, because R.C. 5741.02(C)(5) provides a credit for taxes paid to another jurisdiction. Quotron Systems, Inc. v. Limbach (1992), 62 Ohio St.3d 447, 449, 584 N.E.2d 658, 660; PPG Industries, Inc. v. Tracy (1996), 74 Ohio St.3d 449, 452, 659 N.E.2d 1250, 1251-1252. We rule so again. Accordingly, we affirm the BTA’s decision because it is reasonable and lawful. Decision affirmed. Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.