{ "id": 2616905, "name": "UNION ELECTRIC COMPANY, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants", "name_abbreviation": "Union Electric Co. v. Department of Revenue", "decision_date": "1989-02-09", "docket_number": "No. 4\u201488\u20140131", "first_page": "1", "last_page": "13", "citations": [ { "type": "official", "cite": "180 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "225 U.S. 101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338212 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/225/0101-01" ] }, { "cite": "129 N.E.2d 765", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "7 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2713879 ], "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/7/0095-01" ] }, { "cite": "100 L. Ed. 2d 21", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6209320 ], "weight": 2, "pin_cites": [ { "page": "27" }, { "page": "1623" } ], "opinion_index": 0, "case_paths": [ "/us/486/0024-01" ] }, { "cite": "485 U.S. 24", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "430 U.S. 274", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12123142 ], "weight": 5, "pin_cites": [ { "page": "278" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/us/430/0274-01" ] }, { "cite": "236 U.S. 178", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8286164 ], "weight": 3, "pin_cites": [ { "page": "187" }, { "page": "531" }, { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/us/236/0178-01" ] }, { "cite": "95 L. Ed. 517", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "340 U.S. 534", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931853 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/340/0534-01" ] }, { "cite": "244 U.S. 346", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 343114 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/244/0346-01" ] }, { "cite": "227 U.S. 504", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8288541 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/227/0504-01" ] }, { "cite": "209 U.S. 211", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8288694 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/209/0211-01" ] }, { "cite": "290 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3925583 ], "weight": 6, "pin_cites": [ { "page": "9-10" }, { "page": "136" }, { "page": "37" }, { "page": "9-10" }, { "page": "136" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/us/290/0001-01" ] }, { "cite": "419 N.E.2d 899", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 446", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046081 ], "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0446-01" ] }, { "cite": "97 S. Ct. 2667", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "53 L. Ed. 2d 267", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "431 U.S. 950", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2193, 1579, 2092, 2014 ], "opinion_index": 0, "case_paths": [ "/us/431/0950-04", "/us/431/0950-03", "/us/431/0950-01", "/us/431/0950-02" ] }, { "cite": "352 N.E.2d 272", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "280" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 397", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2965390 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "407" }, { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0397-01" ] }, { "cite": "102 L. Ed. 2d 607", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1494127 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/us/488/0252-01" ] }, { "cite": "273 N.E.2d 585", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "586" } ], "opinion_index": 1 }, { "cite": "49 Ill. 2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911178 ], "pin_cites": [ { "page": "46" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/49/0045-01" ] } ], "analysis": { "cardinality": 1081, "char_count": 27820, "ocr_confidence": 0.757, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3329705708711203 }, "sha256": "252d6d288de9d31e2013ed5ee49ead8e2117174080cc63bdd2da822e31bf9d0b", "simhash": "1:a7f817192a4f07c1", "word_count": 4632 }, "last_updated": "2023-07-14T16:06:12.370658+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "UNION ELECTRIC COMPANY, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE LUND\ndelivered the opinion of the court:\nPlaintiff Union Electric Company purchased Illinois coal solely for the use of its Missouri-located generating plants. Because of the method of transferring the coal to Missouri, the Department of Revenue of the State of Illinois (Department) claimed unpaid use taxes, together with penalties and interest. Plaintiff paid the claim taxes, with penalties and interest, under protest and sued for a refund. The circuit court of Sangamon County ruled in plaintiff\u2019s favor, ordering the refund. Department appeals.\nTRANSFER OF COAL\nPlaintiff contracted to buy coal from two Franklin County, Illinois, coal mining operations, Old Ben Coal Company (Old Ben) and Inland Steel Coal Company (Inland). All coal purchased, now in issue, was to be used at plaintiff\u2019s Meramec Power Plant (Meramec) located in the State of Missouri. Meramec coal is delivered solely from barges to the Mississippi River plant site. The coal left both Old Ben and Inland\u2019s Franklin County operations on the Missouri-Pacific Railroad, traveling to Cora Dock Corporation (Cora Dock) at Cora, Illinois, where the coal was transferred from train cars to river barges. Cora, Illinois, a small village on the Mississippi River, is located approximately 45 miles southwest of Benton, the county seat of Franklin County.\nCONTRACTS TO DELIVER\nPlaintiff\u2019s contract with Old Ben provided for the coal to be delivered to Federal Barge for shipment to Meramec. Federal Barge made the arrangements for the use of railroad cars for transportation of the coal from Old Ben to Cora Dock. Missouri-Pacific was the only railroad with lines to Cora Dock, and the only railroad with an applicable tariff. The agreement provided, as to the coal going to Meramec, as follows:\n\u201c[S]hipment shall be for delivery to Federal Barge Lines, a common carrier, or other designated barge common carrier, F.O.B. designated dock for further shipment to Buyer\u2019s destination power plant in Missouri. Buyer shall be responsible for scheduling coal shipments via common carrier acceptable to both parties and for unloading coal at its power plants in Missouri.\u201d\nPlaintiff agreed to reimburse Old Ben for all freight costs paid by Old Ben, except for certain penalties.\nPlaintiff\u2019s purchase orders, used to buy coal from Inland, show the coal to be shipped \u201cvia the MoPac R.R. to the Cora Dock, Cora, Illinois, for transshipment beyond to Union Electric\u2019s Meramec Plant *** in Federal Barge Lines barges.\u201d Inland prepaid the freight \u201cas specified in the basic order.\u201d\nPlaintiff contracted with Cora Dock to transfer the coal from rail to barge when arriving at Cora Dock. Cora Dock made all arrangements for the barges, including selection of United Barge Company, a common carrier, to ship the coal to Meramec. Neither Cora Dock nor United Barge was owned by plaintiff.\nThe January 1, 1981, agreement between plaintiff and Cora Dock Corporation includes the following:\n\u201cWHEREAS, Union has arranged or will arrange with the coal supplier to load cars for the transport of said coal to the coal transfer facility located in the vicinity of Cora, Illinois (hereinafter called \u2018Terminal\u2019); and\nWHEREAS, Union desires to enter into an agreement with Cora pursuant to which Cora will handle and receive unit train deliveries of the coal at the Terminal, transfer the coal to barges, and transport and deliver said coal by river barges to Union\u2019s generating plant known as the Meramec Plant located in St. Louis County, Missouri.\u201d\nThe original term of the January 1, 1981, contract extended from February 1, 1981, through December 31, 1984. A December 18, 1984, amendment, effective January 1, 1985, extended the term of the agreement to April 30, 1985. Other changes made by the amendment are not material to this litigation.\nArticle III of the contract provided that Cora would provide rail-cars for delivery of coal to the terminal. Unloading was to be within four hours after arrival of the train. Plaintiff was responsible for paying all charges for loading and transporting the coal destined for the Meramec plant. Cora was responsible for detention charges relative to unloading coal under the applicable tariff. Plaintiff was responsible for reimbursing Cora for any additional expense should the coal arrive at the terminal frozen, should the top coal exceed two inches, or there were excessive fines.\nThe agreement provided Cora was to exercise reasonable care, and Cora was to obtain cargo insurance for the terminal-to-plant trip.\nCora agreed to let plaintiff or its subcontractor, at plaintiff\u2019s \u201cexpense and instructions,\u201d sample or use the automatic sampler at Cora while the coal was at Cora. The stipulation of facts entered into by the parties stated that while plaintiff had the right to sample or use the automatic sampler at Cora, no sampling was conducted at Cora by plaintiff or anyone else.\nThe agreement provided Cora was to supply a tow boat and barges. Cora had exclusive control of the methods of unloading, transferring, and loading of barges at the terminal, and of transporting and delivering the coal to the plant.\nArticle XI of the contract between plaintiff and Cora Dock specified that the agreement would not be construed as a contract by plaintiff for leasing any barge, two boats, or other equipment. None of the subcontractors, agents, servants, or employees of Cora would be regarded as plaintiff\u2019s employees. The agreement further stated Cora and its subcontractors \u201care in all respects independent contractors and *** Union shall exercise no control over such barge, towboats or other equipment or the agents, servants or employees of Cora or its subcontractors except as specifically provided herein.\u201d The parties agreed the contract was to be governed by Missouri law.\nILLINOIS USE TAX ACT AND REGULATIONS RELATING THERETO\nThe Illlinois Use Tkx Act (Use Tax) (Ill. Rev. Stat. 1983, ch. 120, pars. 439.1 through 439.51) complements the Retailers\u2019 Occupation Tax Act (Sales Tax) (Ill. Rev. Stat. 1983, ch. 120, pars. 440 through 453). The statutory provisions applicable to the present case are from section 3 of the Use Tax, and provide as follows:\n\u201cA tax is imposed upon the privilege of using in this State tangible personal property ***. Such tax is at the rate of 5% of either the selling price or the fair market value, if any, of such property as provided herein.\n* * *\nTo prevent actual or likely multistate taxation, the tax herein imposed does not apply to the use of tangible personal property in this State under the following circumstances:\n* * *\n(g) the use or purchase of tangible personal property by a common carrier by rail which receives the physical possession of such property in Illinois, and which transports such property, or shares with another common carrier in the transportation of such property, out of Illinois on a standard uniform bill of lading showing the seller of the property as the shipper or consignor of such property to a destination outside Illinois, for use outside Illinois;\n* * *\nIf the seller of tangible personal property for use would not be taxable under the Retailers\u2019 Occupation Tax Act despite all elements of the sale occurring in Illinois, then the tax imposed by this Act shall not apply to the use of such tangible personal property in this State.\u201d Ill. Rev. Stat. 1983, ch. 120, par. 439.3.\nThe Sales Tax regulations are applicable to the Use Tax, and section 130.605 of the Sales Tax regulations provides, in part:\n\u201c(a) Where tangible personal property is located in this State at the time of its sale (or is subsequently produced in Illinois), and then delivered in Illinois to the purchaser, the seller is taxable if the sale is at retail.\n(1) The sale is not deemed to be in interstate commerce if the purchaser or his representative receives the physical possession of such property in this State.\n(2) This is so notwithstanding the fact that the purchaser may, after receiving physical possession of the property in this State, transport or send the property out of the State for use outside the State or for use in the conduct of interstate commerce.\n* * &\n(b) The tax does not extend to gross receipts from sales in which the seller is obligated, under the terms of his agreement with the purchaser, to make physical delivery of the goods from a point in this State to a point outside this State, not to be returned to a point within this State, provided that such delivery is actually made.\n(c) Nor does the tax apply to gross receipts from sales in which the seller, by carrier (when the carrier is not also the purchaser) or by mail, under the terms of his agreement with the purchaser, delivers the goods from a point in this State to a point outside this State not to be returned to a point within this State.\n(d) The place at which title to the property passes to the purchaser is immaterial. *** Sales of the type described in Subsections (b) and (c) of this Regulation are deemed to be within the protection of the Commerce Clause of the Constitution of the United States.\u201d 86 Ill. Adm. Code 130.605(a), (b), (c), (d) (1985).\nBILLS OF LADING\nThe parties included, in the stipulation of facts, copies of Missouri-Pacific Railroad tariffs applicable during the audit period for the rail shipments of coal from Old Ben and Inland to Cora Dock. Also included with the stipulation of facts are copies of Missouri-Pacific\u2019s bills of lading used during the same time period for shipments from Old Ben to Cora Dock. These are representative of all the bills of lading used. These bills of lading show Old Ben as the shipper and \u201cCora Dock A/o Union Electric\u201d as the consignee. The freight bills show under the heading \u201cLading Description\u201d: \u201cBituminous coal *** unit train movement *** for movement via barge.\u201d The parties stipulated shipping documents used for the Inland purchases show the consignor for each shipment as Inland.\nBills of lading used for barge shipments from Cora Dock to the power plant list the shipper as Cora Dock and plaintiff as consignee.\nTRIAL COURT RULING\nThe trial court concluded Cora Dock was not plaintiff\u2019s representative within the meaning of section 130.605(a)(1), and that the transactions in question fell within interstate commerce pursuant to the provisions of sections 130.605(c) and (d) of the regulations.\nISSUE\nAfter an examination of the authorities cited to us, and having considered all of the arguments of the parties, we conclude the actual issue presented is a narrow one. Did a \u201clocal incident\u201d (\u201ctaxable moment\u201d or \u201ctaxable event\u201d) take place which triggered the Use Tax? It is not argued that the placing of the coal on the common carrier at the mines, or the subsequent travel by common carrier to Cora Dock, resulted in a delivery as envisioned in International-Stanley Corp. v. Department of Revenue (1976), 40 Ill. App. 3d 397, 407, 352 N.E.2d 272, 280, cert. denied (1977), 431 U.S. 950, 53 L. Ed. 2d 267, 97 S. Ct. 2667. It is argued by the Department that the transfer at Cora to Cora Dock for loading on common carrier barges was a delivery to plaintiff and provided plaintiff with the privilege of using the coal within Illinois.\nDECISION\nThe Department quotes Justice Ryan\u2019s statement in United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 449, 419 N.E.2d 899, 901: \u201cThe Illinois use tax is a tax upon the privilege of using personal property within the State.\u201d United involved petroleum purchased in Indiana from Shell Oil Company and delivered to United in Illinois for use in United planes. United claimed an exemption from the Use Tax based on payment of Shell\u2019s Indiana gross income tax, with the Illinois Supreme Court decision upholding the denial of that exemption. The case did not require an explanation for \u201ctaxable event,\u201d or a like kind term, such as \u201clocal incident\u201d or \u201ctaxable moment.\u201d\nA direct delivery from a seller by use of common carrier out of State to a purchaser is free from State tax regardless of where title passes. (86 Ill. Adm. Code 130.605(c), (d) (1985).) It is well settled that once interstate movement has begun, a temporary interruption for safety and convenience, or due to the necessities of the journey, does not take the shipment out of interstate commerce. Minnesota v. Blasius (1933), 290 U.S. 1, 9-10, 78 L. Ed. 131, 136, 54 S. Ct. 34, 37.\nThe interruption may take the goods out of interstate commerce if the interruption is deemed to be for the owner\u2019s benefit. (General Oil Co. v. Crain (1908), 209 U.S. 211, 52 L. Ed. 754, 28 S. Ct. 475 (oil held for packing and distribution purposes ruled held for owner\u2019s benefit and therefore taxable).) Any break in the transportation which would allow the owner to exercise control of absolute ownership has been found sufficient to take the goods out of interstate commerce and make them subject to local taxation. Bacon v. Illinois (1913), 227 U.S. 504, 57 L. Ed. 615, 33 S. Ct. 299 (grain removed from carrier and placed in private grain elevator deemed to be under absolute control of owner, who had power to change consignee, ownership or destination; grain taxable).\nThe authorities also indicate temporary stoppage of transit in order to change the method of transportation does not change the interstate nature of the journey. Western Oil Refining Co. v. Lipscomb (1917), 244 U.S. 346, 61 L. Ed. 1181, 37 S. Ct. 623.\nOur courts have recognized \u201c[t]he requirement that a local incident occur to bring a sale within the taxing power of a State.\u201d (Emphasis added.) (International-Stanley, 40 Ill. App. 3d at 407, 352 N.E.2d at 280.) The International-Stanley case cites Norton Co. v. Department of Revenue (1951), 340 U.S. 534, 95 L. Ed. 517, 71 S. Ct. 377.\nThe arrangement at Cora Dock was necessary because the coal had to arrive at Meramec on barge. Cora Dock was not owned by plaintiff, and the contract between plaintiff and Cora Dock called for transfer of the coal from rail to barges and transfer up the Mississippi River to the generating plant. The evidence indicates Cora Dock was an independent contractor and was not obligated to do anything but transfer the coal from railroad to barge so that the coal could move on by common carrier to Meramec. No explicit authority existed allowing plaintiff to direct otherwise. At no time was coal sidetracked or shipped to another location. The Department is correct in saying a transfer to an Illinois coal use would have been a taxable use by plaintiff, but the transferring by Cora Dock provided for no such event, and none occurred.\nThe United States Supreme Court, in treating the sale of Tennessee alcohol by mail order, only to those outside of Tennessee, to be interstate commerce, stated:\n\u201cBut this is immaterial since it is not open to controversy that substance, and not form, controls in determining whether a particular transaction is one of interstate commerce, and hence that the mere method of delivery is a negligible circumstance if, in substantial effect, the transaction under the facts of a given case is interstate commerce.\u201d (Heyman v. Hays (1915), 236 U.S. 178, 187, 59 L. Ed. 527, 531, 35 S. Ct. 403, 405.)\nAs further assistance in solving the problem now presented, we also look to the four-part test set forth in Complete Auto Transit, Inc. v. Brady (1977), 430 U.S. 274, 51 L. Ed. 2d 326, 97 S. Ct. 1076. The United States Supreme Court, while acknowledging the conflicts arising out of the application of sales and use taxes, recently said:\n\u201cComplete Auto abandoned the abstract notion that interstate commerce \u2018itself\u2019 cannot be taxed by the States. We recognized that, \"with certain restrictions, interstate commerce may be required to pay its fair share of State taxes. Accordingly, in the present case, it really makes little difference for Commerce Clause purposes whether appellant\u2019s catalogs \u2018came to rest\u2019 in the mailboxes of its Louisiana customers or whether they were still considered in the stream of interstate commerce. This distinction may be of some importance for other purposes (in determining, for instance, whether a \u2018taxable moment\u2019 has occurred, see 505 So. 2d, at 105), but for Commerce Clause analysis it is largely irrelevant.\u201d D.H. Holmes Co. v. McNamara (1988), 485 U.S. 24, _, 100 L. Ed. 2d 21, 27, 108 S. Ct. 1619, 1623.\nIn referring to Complete Auto, we recognized the great difference in facts from the present case. The Mississippi tax was \u201cfor the privilege of carrying on, within a state, certain activities.\u201d The taxpayer in Complete Auto hauled automobiles from rail loading docks within Mississippi to automobile dealerships in Mississippi. The vehicles had been in interstate commerce, and interstate commerce was assumed. The tax imposed in Mississippi was similar to a sales tax, but was assessed for \u201csales of transportation services.\u201d In upholding the Mississippi tax, the Supreme Court reversed its previous adoption of a rule which \u201creflects an underlying philosophy that interstate commerce should enjoy a sort of \u2018free trade\u2019 immunity from state taxation.\u201d (Complete Auto, 430 U.S. at 278, 51 L. Ed. 2d at 330, 97 S. Ct. at 1078-79.) The Complete Auto decision requires affirmative answers to four questions prior to upholding the State tax against a commerce clause challenge. The questions are: (1) is the tax applied to an activity with a substantial nexus with the taxing State; (2) is the tax fairly apportioned; (3) is the tax free from discrimination against interstate commerce; and (4) is the tax fairly related to the services provided by the State.\nAs we have stated, there is a difference between the issues in Complete Auto and in the present case because of the question of whether a taxable event, terminating interstate commerce, took place at Cora Dock in the overall process of transferring the coal out of the State of Illinois from the mine to Meramec. Without a taxable event, the transfer would be interstate in nature and free from the taxation. Nevertheless, the Complete Auto test provides some guidance because the policy involved appears similar to the one now confronting this court.\nThe first prong of the Complete Auto test appears determinative. The activity is limited to the Cora Dock transfer. Plaintiff was not involved in the interstate movement by the railroad from the mines to Cora Dock. The wording on the bills of lading, while noting the ultimate transfer to Meramec, appears to provide for delivery to Cora Dock. Our supreme court has recognized the designation on a bill of lading does not change what is intrastate commerce to interstate commerce. (Pressed Steel Car Co. v. Lyons (1955), 7 Ill. 2d 95, 103, 129 N.E.2d 765, 769.) We assume a designation on a bill of lading is only evidence, and not determinative in itself, whether a sale is intrastate or interstate commerce:\n\u201cWhether commerce is interstate and subject to the regulatory powers of Congress, or intrastate and subject to state control, should be determined from its essential character. Substance, and not form, controls in the determination of the character of the transaction; the courts will look to practical considerations and the established course of business.\u201d (Emphasis added.) (15A Am. Jur. 2d Commerce \u00a78, at 328 (1976).)\nIf the tax were upheld, it would be because of its application to the very limited activity at Cora Dock. Cora Dock was doing a specific function as an independent contractor, transferring coal from one common carrier to another common carrier. We find the evidence fails to indicate an activity with a substantial nexus with the State of Illinois.\nBecause the tax would only be collectible because of the activities at Cora Dock, which activities include nothing more than transfers from railroad cars to barges, we question whether the tax is fairly related to services provided by the State of Illinois. It, thus, appears .that the fourth prong of the Complete Auto test also cannot be answered in the affirmative.\nParenthetically, we note section 130.610 (86 Ill. Adm. Code 130.610 (1985)) specifically provides \u201crepresentatives\u201d of purchasers do not include \u201can independent carrier engaged in the business of transporting property for hire.\u201d 86 Ill. Adm. Code 130.610(a)(1)(B) (1985); see also 86 Ill. Adm. Code 130.610(b)(4), (c)(1)(D) (1985).\nWhile we recognize these same provisions are not included in section 130.605, it would appear that if Union Electric had purchased coal in Indiana, which was shipped by a common carrier, a railroad not owned by Union Electric, across Illinois to Cora Dock for transfer to another common carriel1 not owned by Union Electric, Cora Dock would not be considered a \u201crepresentative\u201d of Union, being nothing more than an instrumentality transferring coal from one common carrier to another. As we have previously said, it is well settled that once interstate movement has begun, a temporary interruption due to the necessities of the journey does not take the shipment out of interstate commerce. Blasius, 290 U.S. at 9-10, 78 L. Ed. at 136, 54 S. Ct. at 37.\nWe conclude that the contracted services at Cora Dock were not such as to be considered a taxable event, and the tax, as applied, was an unconstitutional infringement upon the interstate commerce. This decision is consistent with the substance over form position referred to in Heyman and in Complete Auto. Our conclusion also appears to be consistent with the holding of the United States Supreme Court in R. R. Comm\u2019n v. Worthington (1912), 225 U.S. 101, 56 L. Ed. 1004, 32 S. Ct. 653.\nWe further conclude the trial court\u2019s decision holding Cora Dock was not plaintiff\u2019s representative within the meaning of section 130.605(a)(1) was correct. Cora Dock\u2019s authority was to do nothing more than transfer the coal for continuing the interstate travel to Meramec. This authority does not equate with the authority to do business with the coal in such a way as to justify a finding of a taxable event (or local incident) as described in International-Stanley.\nThe decision of the circuit court of Sangamon County is affirmed.\nAffirmed.\nKNECHT, J., concurs.", "type": "majority", "author": "JUSTICE LUND" }, { "text": "PRESIDING JUSTICE McCULLOUGH,\ndissenting:\nThe parties agree that this is a question concerning a use tax to be imposed by the State of Illinois. First, I question the term \u201cuse tax.\u201d In Illinois, a use tax is a tax upon the privilege of using personal property within this State. (United Air Lines, Inc. v. Mahin (1971), 49 Ill. 2d 45, 46, 273 N.E.2d 585, 586.) As is apparent, the reason for the use tax is to complement the retailers\u2019 occupation tax by preventing the evasion of tax on purchases made outside the State and equalize a competitive disadvantage of Illinois retailers who face retailers\u2019 occupational tax liability.\nThe transaction in this case involves a purchase of coal from Old Ben Coal Company and Inland Steel Company. Both coal companies were located in Illinois, and there is no dispute that the coal was in the State of Illinois at the time of its purchase. It is also undisputed that Old Ben and Inland are retailers for the purposes of the Retailers\u2019 Occupation Tax Act. Likewise, it is undisputed that the coal purchased was not purchased for the purpose of resale and that the purchase of the coal was not taxed by the State of Missouri or any other State. Contested is whether delivery was in Illinois.\nBecause of my inability to see the big picture, i.e., that it is other than a sales tax and not a matter of interstate commerce, I would find that the Union Electric Company (Union) is responsible for the tax to the State of Illinois.\nOn the merits, we need only look to the contract between Union and Cora Dock. In article II, paragraph 5, of the contract, it provided:\n\u201cIn the event Union is unable, for any reason, to receive coal from barges at the Plant, then it may request Cora to divert deliveries to an alternate destination. Cora reserves the right to refuse to serve a particular alternative destination because of operating conditions or other circumstances.\u201d\nArticle III requires Cora to cause each unit of a train to be unloaded at the terminal within a specific time period. However, with respect to delivery from Cora to Union, article V provides:\n\u201cIt is anticipated by the parties that three or four tows per week shall constitute normal operating conditions under this Agreement. Scheduling of loaded barges and the release of empties shall be in conjunction with the needs of the Plant.\u201d\nA question in this case: Is there an interruption for the owner\u2019s benefit? If there is an interruption, then the property is taxable.\nAlthough Cora Dock was required to unload the trains coming into Cora Dock on a timely basis, i.e., within four hours, there was no similar requirement that the coal move from Cora Dock to Union at any specific time schedule. It appears from reading the contract that the coal could and would be stockpiled at Cora Dock for transfer to Union, the only provision in the contract being that \u201c[i]t is anticipated by the parties that three or four tows per week shall constitute normal operating conditions.\u201d\nIf the purchaser or his representative receives physical possession of the property in Illinois, the sale is not within interstate commerce. This applies even though the buyer may ship the goods out-of-State after receiving physical possession of the property in this State. (86 Ill. Adm. Code 130.605(a)(1), (a)(2) (1985).) With respect to the application of sections 130.605(b), and (c), subsection (b) concerns sales in which the sellers are obligated by agreement with the purchaser to physically deliver the goods from Illinois to out-of-State. In this case, the sellers, Old Ben and Inland, were only obligated to furnish the coal at the loading point at each mine. As to subsection (c), it exempts sales in which the seller, by carrier or by mail, under contract with the buyer, delivers goods from in-State to out-of-State. The arrangements for delivery beyond the point of loading were made by Cora and Union and not by the sellers. Neither of these subsections apply to this case.\nSimply stated, Cora Dock acted as plaintiff\u2019s representative for purpose of assessing the tax liability under section 130.605(a)(1) of the regulations.\nI would also find that the elements of Complete Auto are satisfied if applied to this case. The four-part test: (1) the tax must be fairly apportioned; (2) it must not discriminate against interstate commerce; (3) the tax must be fairly related to benefits provided by the State; and (4) there must be a sufficient nexus between the activity and the State. Applying this test, the tax is fairly apportioned, it does not discriminate against interstate commerce inasmuch as it may very well be a simple sales tax or if considered a use tax, it is for property which is not purchased for resale. The tax does not discriminate against interstate commerce, is fairly apportioned, and is related to the benefits provided by the State who provide law enforcement and other governmental services. The coal is taken from the State of Illinois ground, and certainly the operation of the coal mine and the contract provisions provide a sufficient nexus between the activity and the State.\nThe Supreme Court\u2019s application of Complete Auto in Goldberg v. Sweet (1989), 488 U.S___, 102 L. Ed. 2d 607, 109 S. Ct. 582, is further justification to uphold the tax here.", "type": "dissent", "author": "PRESIDING JUSTICE McCULLOUGH," } ], "attorneys": [ "Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Bret A. Rappaport, Assistant Attorney General, of Chicago, of counsel), for appellants.", "Thompson & Mitchell, of Belleville (Robert L. Broderick and Mark J. Stegman, of counsel), for appellee." ], "corrections": "", "head_matter": "UNION ELECTRIC COMPANY, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.\nFourth District\nNo. 4\u201488\u20140131\nOpinion filed February 9, 1989.\nMcCULLOUGH, P.J., dissenting.\nNeil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Bret A. Rappaport, Assistant Attorney General, of Chicago, of counsel), for appellants.\nThompson & Mitchell, of Belleville (Robert L. Broderick and Mark J. Stegman, of counsel), for appellee." }, "file_name": "0001-01", "first_page_order": 23, "last_page_order": 35 }