Cargo Carriers, Inc. v. Ragland

Steele Hays, Justice. Cargo Carriers, Inc., manufactures barges at Pine Bluff. Some are sold to third parties, some are retained and delivered to Inland Waterways Division, a separate division of Cargo Carriers, Inc. In 1978 the Arkansas Department of Revenues assessed a deficiency of $204,948.22 in Gross Receipts Tax (Sales Tax) claimed by the State on the delivery of sixty-six barges to Inland Waterways. The State took the position that when the sixty-six barges were “withdrawn from inventory” a taxable event occurred within the meaning of Ark. Stat. Ann. § 84-1902 (d) (Repl. 1980) which reads in part: “The term ‘gross proceeds’ or ‘gross receipts’ shall include the value of any goods, wares, merchandise, or property withdrawn or used from the established business or from the stock and trade of the established reserves for consumption or use in such business or by any other person.” Cargo protested and when administrative remedies provided no relief, it filed suit in chancery to enjoin collection of the tax, claiming the assessment of taxes amounted to an illegal exaction and, hence, was prohibited by Article 16 § 13 of the Constitution of Arkansas. Cargo contended that § 84-1902 (d) was not applicable because the barges were only partially completed in Arkansas. It said the unfinished hulls were then ferried to Paducah, Kentucky, for final completion and so the barges did not become a part of Cargo’s fleet until they had entered interstate commerce outside the State of Arkansas. Cargo’s petition asked for a refund of $61,180.89 in Use Taxes it had paid on the value of materials used in constructing the barges. After testimony and proof the Chancellor found that the barges were completed at Pine Bluff and became subject to the Sales Tax under § 84-1902 (d) at that time. A deficiency of $204,948.22, based on the value of the completed barges at the time of delivery, was assessed and Cargo’s claim of refund was denied, as the proof showed that Cargo had been credited with the amount of Use Tax paid. On appeal, no issue is raised that the Chancellor’s findings are against the preponderance of the evidence. Instead, we are asked to hold the Arkansas Gross Receipts Tax, as applied in this case, unconstitutional under the commerce, due process and equal protection clauses of the Constitution of the United States. The State counters Cargo’s assignment of error with the familiar rule that constitutional questions cannot be raised for the first time on appeal. T. H. Epperson & Son, Inc. v. Robinson, 274 Ark. 142, 622 S.W.2d 668 (1982), Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979). The point is well taken, as we find no basis in the record to support the argument on appeal. Cargo cites only an amendment to its petition asserting that the assessment against it constitutes “an illegal exaction prohibited by the Constitution of the State of Arkansas”, as evidence that the issue was first presented to the trial court. But that attempt must fail. Art. 16 § 13 of the Arkansas Constitution provides that any citizen may institute suit in behalf of himself and others to protect against the enforcement of any illegal exactions. There is nothing about that provision of the Arkansas Constitution that bears any resemblance to those provisions of the United States Constitution which Cargo claims are violated, i.e. the commerce, due process or equal protection clauses. We readily reject the premise that a litigant can argue a violation of the illegal exaction provision of the Arkansas Constitution before the trial court and contend on appeal his argument includes the commerce, due process and equal protection clauses of the United States Constitution as well. Such a holding would be hostile to the principle that arguments must be presented to the trial court with clarity and particularity in order to be noticed on appeal. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983), Klobnock v. Abbott, 303 N.W.2d 149 (Iowa S. Ct., 1981), Foster v. Lamphere, 368 A.2d 1238 (R.I. S.Ct. 1977), City of St. Louis v. Butler Co., 219 S.W.2d 372 (Mo. S.Ct. 1949); Sewer and Waterworks Improvement District No. 1 v. McClendon, 187 Ark. 510, 60 S.W.2d 920 (1933). The decree is affirmed. Supplemental Opinion on Denial of Rehearing delivered March 28, 1983