Opinion
No. 36135
Decided February 24, 1960.
Taxation — Highway use tax — Claims for refund — Reciprocity agreement between Ohio and Indiana, construed — Exemptions.
APPEAL from the Board of Tax Appeals.
Eastern Express, Inc., hereinafter called appellant, is a corporation organized under the laws of the state of Indiana and engaged in the business of transporting goods for hire by means of motor vehicles operating over the public streets and highways of several states, including Indiana and Ohio. Appellant filed with the Tax Commissioner of Ohio, appellee herein, claims for refund of Ohio highway use tax payments made by it between October 1953 and September 1955, by reason of a reciprocity agreement entered into between the states of Ohio and Indiana on December 23, 1937, and amended March 30, 1944.
The payments made by appellant may be broken down into three categories according to ownership and place of licensing and certification of vehicles:
(1) Vehicles owned by appellant or owned by other domiciliaries of Indiana and licensed and certificated in Indiana. The Tax Commissioner allowed a refund or certificate of abatement as to these vehicles in the amount of $45,933.32. This amount is not now in issue.
(2) Vehicles owned by Indiana domiciliaries but titled and registered in the state of New Jersey. The highway use tax paid thereon for operation on Ohio highways was $140,399.23, which amount the Tax Commissioner refused to refund and is in issue here.
(3) Vehicles not owned by Indiana domiciliaries and not titled and registered in Indiana (but operated under lease agreements by appellant). The highway use tax paid thereon for operation in Ohio highways was $101,742.12, which amount the Tax Commissioner refused to refund and is in issue here.
The Board of Tax Appeals affirmed the order of the Tax Commissioner, and the cause is before this court on appeal from the Board of Tax Appeals.
Mr. Ira L. Haymaker, Messrs. Rosenfeld Wolfe, Messrs. Vorys, Sater, Seymour Pease and Mr. Byron E. Ford, for appellant.
Mr. Mark McElroy, attorney general, Mr. William P. Meehan and Mr. Joseph L. White, for appellee.
It is conceded by all parties that the following portion of the reciprocity agreement between Ohio and Indiana controls the decision in this case:
"Both states during the term of this agreement and subject to carriers procurements of reciprocity exemption will permit motor carriers of the other state, as qualified and included in the definition `motor carrier' as contained in paragraph I hereof, to travel and operate in interstate commerce upon their several public streets and highways without necessity for payment of such fees and taxes for which waiver provision is herein made. Said exemption shall apply to equipment actually permitted and certificated and used by any carrier otherwise entitled to the benefits of this agreement, including all equipment which is owned and titled by such carrier and also including such further equipment which may be owned and titled in carrier's home state by another owner and is operated by the carrier under lease or contract from such owner." (Emphasis added.)
Appellant contends that the instances which are given after the word, "including," in the emphasized portion of the paragraph above are merely illustrative and enlarging and are in no sense restrictive and exclusive.
We do not agree with appellant's interpretation. The provision immediately preceding the emphasized portion of the above-quoted paragraph sets out to what the exemption shall apply. Then follow as "examples" the two most obvious types of equipment to which that exemption could extend — that which is owned and titled by the carrier and that which is owned and titled in the carrier's home state and used by the carrier although owned by another. In our opinion, the signatories of the agreement would not have taken the pains to list such obvious "examples" unless they intended that those were all they meant to exempt.
This being the interpretation given the agreement by the Board of Tax Appeals, we find that the decision of the board is both lawful and reasonable, and it is, therefore, affirmed.
Decision affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.