Alico, LLC v. Somers ( 2023 )

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ALICO, LLC, ET AL. v. TOWN OF SOMERS ET AL.
(SC 20748)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Alexander and Suarez, Js.
Syllabus
The plaintiffs, A Co. and its sole member, N, appealed to the trial court
from the decision of the board of assessment appeals of the defendant
town of Somers, Connecticut, which upheld property tax assessments
on two motor vehicles owned by A Co. A Co. is a Massachusetts company
with offices in Ludlow, Massachusetts, and in Somers. N and his wife,
who works for A Co., drive the vehicles every day and garage the vehicles
at their home in Somers. Until 2021, both vehicles were registered in
Massachusetts, and A Co. paid taxes on them in that state. In 2018, the
defendant town’s tax assessor became aware of the presence of the
vehicles in the town, and he retroactively placed them on the town’s
2017 and 2018 grand lists and assessed motor vehicle property taxes
on N individually pursuant to the statute (§ 12-71 (f)) that, inter alia,
authorizes a Connecticut municipality to assess property taxes on any
motor vehicle that, in the normal course of operation, most frequently
leaves from and returns to that municipality. N appealed the assessments
to the board of assessment appeals, which altered the 2017 and 2018
grand lists to reflect that A Co. was the owner of the vehicles but
otherwise upheld the assessments. A Co. then appealed the assessments
to the board, which again upheld the assessments. Thereafter, the plain-
tiffs appealed to the trial court, seeking, inter alia, a judgment declaring
that the assessments were unconstitutional in light of federal jurispru-
dence pertaining to the dormant commerce clause under the United
States constitution. The plaintiffs argued that, because the vehicles were
used in interstate commerce and subject to taxation in Massachusetts,
the vehicles impermissibly were subjected to double taxation under
§ 12-71 (f). The trial court denied the plaintiffs’ request for a declaratory
judgment, concluding that § 12-71 (f) did not discriminate against inter-
state commerce and that any double taxation on the vehicles was not
the result of a discriminatory tax scheme but, rather, was caused by
the plaintiffs’ own business decisions. On appeal, the plaintiffs renewed
their claim that the taxation of A Co.’s vehicles pursuant to § 12-71 (f)
violated the dormant commerce clause.
Held that the motor vehicle property tax authorized by § 12-71 (f) is a valid,
nondiscriminatory tax that does not violate the dormant commerce
clause, and, accordingly, this court affirmed the trial court’s judgment:
Because § 12-71 (f) is facially neutral, this court applied the test set forth
in Complete Auto Transit, Inc. v. Brady (430 U.S. 274) for determining
the constitutionality of a state tax that is facially neutral but has the
practical effect of imposing a burden on interstate commerce that is
disproportionate to its legitimate benefits, under which the tax will be
sustained if it (1) is applied to an activity that has a substantial nexus
with the taxing state, (2) is fairly apportioned, (3) does not discriminate
against interstate commerce, and (4) is fairly related to the services
provided by the state.
Insofar as the plaintiffs conceded that § 12-71 (f) satisfied the first and
fourth prongs of the Complete Auto Transit, Inc. test, and because they
advanced the same claim with respect to both the second and third
prongs, this court limited its analysis to the second prong and applied
the internal consistency test for determining whether a tax has been fairly
apportioned, pursuant to which a court determines whether interstate
commerce would be placed at a disadvantage if every state imposed the
same tax law as the law under review.
In the present case, it was clear from the statutory scheme that, if every
state adopted a tax scheme identical to that of § 12-71 (f), a vehicle
would be taxed by only one state because a vehicle cannot, in the normal
course of operation, most frequently leave from and return to more than
one state, and, thus, if Massachusetts had a tax scheme identical to that
of § 12-71 (f), A Co. would owe no taxes to Massachusetts, despite being
incorporated in that state and registering its vehicles there, as it was
undisputed that A Co.’s vehicles most frequently left from and returned
to Connecticut.
Moreover, contrary to the plaintiffs’ claim that § 12-71 (f) is internally
inconsistent insofar as it does not provide for a credit for the taxes that
A Co. pays to Massachusetts, the provision of tax credits saves a tax
scheme from a commerce clause challenge only if the tax scheme is
internally inconsistent, and this court determined that § 12-71 (f) presents
no risk of multiple taxation and, thus, passes the internal inconsis-
tency test.
Furthermore, there is a distinction between discriminatory tax schemes
that violate the commerce clause and double taxation that results only
from the interaction of two different but nondiscriminatory tax schemes,
and, to the extent that A Co. pays multiple taxes on its vehicles as a
result of its decision to register its vehicles in Massachusetts and to
garage them in Connecticut, that double taxation is the result of the
combined effect of Connecticut’s and Massachusetts’ different and non-
discriminatory tax schemes, one of which taxes vehicles on the basis
of their physical location and the amount of time that they are in the
state, and the other that taxes vehicles on the basis of their registration
in the state.
Argued September 11—officially released December 19, 2023
Procedural History
Appeal from the decision of the defendant board of
assessment appeals concerning the taxation of certain
of the named plaintiff’s motor vehicles, brought to the
Superior Court in the judicial district of Tolland and
transferred to the judicial district of New Britain, Tax
Session, where the complaint was withdrawn as to the
defendant Clyde G. Knorr, Jr., et al.; thereafter, the case
was tried to the court, Cordani, J.; judgment sustaining
the appeal in part, from which the plaintiffs appealed.
Affirmed.
George C. Schober, for the appellants (plaintiffs).
James Stedronsky, with whom, on the brief, was Carl
Landolina, for the appellees (named defendant et al.).
Opinion
ALEXANDER, J. General Statutes § 12-71 (f) (1)1 author-
izes Connecticut towns to assess property taxes on any
motor vehicles that, in the normal course of operation,
most frequently leave from and return to their towns.
The sole issue presented by this appeal is whether the
dormant commerce clause of the United States constitu-
tion precludes the named defendant, the town of Som-
ers (town),2 from taxing vehicles that are owned by a
Massachusetts company and registered in Massachu-
setts, but leave from and return each day to Somers.
The plaintiffs, Alico, LLC (Alico), and Helder Nunes,
appeal3 from the judgment of the trial court denying
their request for a judgment declaring that the tax is
unconstitutional because it impermissibly subjects the
vehicles to double taxation. We affirm the judgment of
the trial court.
The trial court found the following relevant facts.
Helder Nunes is the sole member of Alico, a Massachu-
setts landscape construction company operating in sev-
eral states, with offices in Ludlow, Massachusetts, and
Somers. Helder Nunes’ wife, Kari Nunes, also works
for the company. Alico owns two vehicles for use in
its business—a 2017 Chevrolet Silverado and a 2017
Cadillac Escalade. The vehicles are driven daily by the
Nuneses, who garage them each evening at their home
in Somers. Until 2021, both vehicles were registered in
Massachusetts, and Alico paid taxes on them to that
state.4
In 2018, the town’s tax assessor became aware of
Alico’s vehicles, prompting him to retroactively place
them on the town’s 2017 and 2018 grand lists and to
assess personal property taxes on Helder Nunes individ-
ually, even though the vehicles are owned by Alico.
The tax assessor also assessed a 25 percent penalty on
Helder Nunes individually for Alico’s failure to include
the vehicles on its personal property declarations.5 Helder
Nunes appealed to the defendant Board of Assessment
Appeals of the Town of Somers (board), which altered
the 2017 and 2018 grand lists to reflect Alico as the
owner of the vehicles but otherwise upheld the assess-
ments. Alico appealed the modified assessments to the
board, which once again upheld the assessments.
The plaintiffs then appealed to the Superior Court
pursuant to General Statutes §§ 12-117a and 12-119. The
plaintiffs’ three count complaint sought, among other
things, a judgment declaring that the assessments were
unconstitutional under the dormant commerce clause.6
See, e.g., Oklahoma Tax Commission v. Jefferson Lines,
Inc., 514 U.S. 175, 179, 115 S. Ct. 1331, 131 L. Ed. 2d
261 (1995). The plaintiffs argued that the assessments
violated that clause because the vehicles were used in
interstate commerce and subject to taxation in Massa-
chusetts pursuant to chapter 60A of the Annotated Laws
of Massachusetts, § 1.7 The court disagreed and con-
cluded that § 12-71 (f) did not discriminate against inter-
state commerce ‘‘but, instead, uniformly taxes the regu-
lar, repeated presence of . . . motor vehicles within
the . . . taxing jurisdiction.’’ The court further deter-
mined that the tax was fairly related to the benefits
provided by the town and that it was ‘‘fairly apportioned
because it is directly tied to the activities of the motor
vehicles within the [town].’’ The court noted that § 12-
71 (f) is qualitatively different from the tax imposed by
Massachusetts, which is an excise tax levied on the
privilege of registering a vehicle in that state. Finally, the
court observed that the plaintiffs ‘‘had the free choice
to determine where the motor vehicles would be regis-
tered and where they would be stored, garaged, and
used’’ such that, to the extent the vehicles were subject
to double taxation, it was not the result of a discrimina-
tory tax scheme but, rather, was caused by the plaintiffs’
own business decisions.
On appeal, the plaintiffs renew their claim that the
inclusion of Alico’s vehicles on the town’s grand list
pursuant to § 12-71 (f) violates the dormant commerce
clause because the vehicles are used in interstate com-
merce and Alico pays taxes on them to the state of
Massachusetts. We agree with the defendants that § 12-
71 (f) is a valid, nondiscriminatory state tax that does
not in any way violate the dormant commerce clause.8
Because a challenge to the constitutionality of a stat-
ute presents a question of law, our review is plenary.
See, e.g., MERSCORP Holdings, Inc. v. Malloy, 320
Conn. 448, 459 n.6, 131 A.3d 220, cert. denied, 580 U.S.
959, 137 S. Ct. 372, 196 L. Ed. 2d 291 (2016). A validly
enacted statute carries a strong presumption of consti-
tutionality, and a party who wishes to challenge it on
constitutional grounds bears the heavy burden of prov-
ing its unconstitutionality beyond a reasonable doubt.
See, e.g., Doe v. Hartford Roman Catholic Diocesan
Corp., 317 Conn. 357, 405, 119 A.3d 462 (2015).
The commerce clause grants Congress the power
‘‘[t]o regulate Commerce with foreign Nations, and
among the Several States, and with the Indian Tribes
. . . .’’ U.S. Const., art. I, § 8, cl. 3. The United States
Supreme Court has ‘‘consistently held this language to
contain a further, negative command, known as the
dormant [c]ommerce [c]lause, prohibiting certain state
taxation even when Congress has failed to legislate on
the subject.’’ Oklahoma Tax Commission v. Jefferson
Lines, Inc., supra, 514 U.S. 179. The dormant commerce
clause prohibits states ‘‘from discriminat[ing] between
transactions on the basis of some interstate element.
. . . This means, among other things, that a [s]tate may
not tax a transaction or incident more heavily when it
crosses state lines than when it occurs entirely within
the [s]tate. . . . Nor may a [s]tate impose a tax [that]
discriminates against interstate commerce either by
providing a direct commercial advantage to local busi-
ness, or by subjecting interstate commerce to the bur-
den of multiple taxation.’’ (Citations omitted; internal
quotation marks omitted.) Comptroller of the Treasury
v. Wynne, 575 U.S. 542, 549–50, 135 S. Ct. 1787, 191 L.
Ed. 2d 813 (2015).
In analyzing whether a tax violates the dormant com-
merce clause, courts look first to see ‘‘if it facially dis-
criminates against interstate commerce. . . . In this
context, discrimination simply means differential treat-
ment of in-state and out-of-state economic interests that
benefits the former and burdens the latter. . . . Dis-
criminatory laws motivated by simple economic protec-
tionism are subject to a virtually per se rule of invalidity
. . . [that] can . . . be overcome [only] by a showing
that the [s]tate has no other means to advance a legiti-
mate local purpose . . . .’’ (Citation omitted; internal
quotation marks omitted.) MERSCORP Holdings, Inc.
v. Malloy, supra, 320 Conn. 474. Alternatively, the dor-
mant commerce clause is violated if a ‘‘tax that is
facially neutral nevertheless . . . has the practical
effect of imposing a burden on interstate commerce
that is disproportionate to the legitimate benefits.’’ Id.In this latter scenario, to determine the constitutionality
of a facially neutral law, we apply the test in Complete
Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct.
1076, 51 L. Ed. 2d 326 (1977) (Complete Auto), under
which courts ‘‘will sustain a tax against a [c]ommerce
[c]lause challenge so long as the tax [1] is applied to
an activity with a substantial nexus with the taxing
[s]tate, [2] is fairly apportioned, [3] does not discrimi-
nate against interstate commerce, and [4] is fairly
related to the services provided by the [s]tate.’’ (Internal
quotation marks omitted.) Chase Manhattan Bank v.
Gavin, 249 Conn. 172, 210, 733 A.2d 782, cert. denied,
528 U.S. 965, 120 S. Ct. 401, 145 L. Ed. 2d 312 (1999).
The plaintiffs do not claim that § 12-71 (f) facially
discriminates against interstate commerce, and we
agree that the statute is facially neutral. The plaintiffs
further concede that § 12-71 (f) satisfies the first and
fourth prongs of the Complete Auto test. Additionally,
although the plaintiffs claim that the statute discrimi-
nates against interstate commerce under the third prong
of the test, they advance this same argument with respect
to the second prong (fair apportionment). We therefore
limit our analysis to the second prong of the test.
‘‘Although the meaning of fair apportionment was
not precisely defined by Complete Auto, the phrase
encompasses whether a tax is fairly attributable to an
activity carried on in the taxing state. . . . That is to
say, to survive constitutional scrutiny, the [challenged]
tax must be fairly apportioned to the taxpayer’s activi-
ties in [the taxing state].’’ (Citation omitted.) Barringer
v. Griffes, 1 F.3d 1331, 1335 (2d Cir. 1993), cert. denied,
510 U.S. 1072, 114 S. Ct. 879, 127 L. Ed. 2d 75 (1994).
‘‘[A]ny threat of malapportionment [is assessed] by ask-
ing whether the tax is ‘internally consistent’ and, if so,
whether it is ‘externally consistent’ as well.’’9 Oklahoma
Tax Commission v. Jefferson Lines, Inc., supra, 514
U.S. 185. Here, the plaintiffs do not argue that § 12-71
(f) is externally inconsistent,10 only that it is internally
inconsistent. The plaintiffs contend that § 12-71 (f) is
internally inconsistent because, if a vehicle leaves from
and returns each day to state A but is registered and
owned by a company in state B, the company would
owe taxes to state A pursuant to § 12-71 (f) (4), and it
would also owe taxes to state B pursuant to § 12-71 (f)
(3) (A). We disagree.
‘‘A failure of internal consistency shows as a matter
of law that a [s]tate is attempting to take more than its
fair share of taxes from the interstate transaction, since
allowing such a tax in one [s]tate would place interstate
commerce at the mercy of those remaining [s]tates that
might impose an identical tax.’’ Id. ‘‘This test, which helps
courts identify tax schemes that discriminate against
interstate commerce, looks to the structure of the tax
at issue to see whether its identical application by every
[s]tate in the [u]nion would place interstate commerce
at a disadvantage as compared with commerce intrastate.’’
(Internal quotation marks omitted.) Comptroller of the
Treasury v. Wynne, supra, 575 U.S. 562.
Section 12-71 (f) (1) provides in relevant part that
‘‘property subject to taxation under this chapter shall
include each registered and unregistered motor vehicle
. . . that, in the normal course of operation, most fre-
quently leaves from and returns to . . . a town in this
state . . . .’’ Thus, § 12-71 (f) (1) only taxes vehicles
that, in the normal course of operation, most frequently
leave from and return to a town in this state. Section
12-71 (f) (3) (A), in turn, addresses how to determine
the tax ‘‘situs’’ for these vehicles. It provides in relevant
part: ‘‘[A]ny motor vehicle . . . registered in this state
subject to taxation in accordance with the provisions
of this subsection shall be set in the list of the town
where such vehicle in the normal course of operation
most frequently leaves from and returns to . . . . It
shall be presumed that any such motor vehicle . . .
most frequently leaves from and returns to . . . the
town in which the owner of such vehicle resides, unless
a provision of this subsection otherwise expressly pro-
vides. . . .’’ General Statutes § 12-71 (f) (3) (A).
Finally, § 12-71 (f) (4) addresses the method for deter-
mining the tax situs of vehicles that are owned by non-
residents. It provides in relevant part: ‘‘Any motor vehi-
cle owned by a nonresident of this state shall be set in
the list of the town where such vehicle in the normal
course of operation most frequently leaves from and
returns to . . . . If such vehicle in the normal course
of operation most frequently leaves from and returns
to . . . more than one town, it shall be set in the list
of the town in which such vehicle is located for the
three or more months preceding the assessment day in
any year . . . .’’ General Statutes § 12-71 (f) (4).
Contrary to the plaintiffs’ assertions, it is clear from
the statutory scheme that, if every state adopted a tax
scheme identical to § 12-71 (f), a vehicle would be taxed
by only one state because a vehicle cannot, in the nor-
mal course of operation, most frequently leave from
and return to more than one state. Thus, if Massachu-
setts had a tax scheme identical to § 12-71 (f), Alico
would owe no taxes to Massachusetts despite being
incorporated in that state and registering its vehicles
there because, pursuant to § 12-71 (f) (3) (A), vehicles
registered in state B are subject to taxation in state B
only if, in the normal course of operation, they most
frequently leave from and return to state B. In the present
case, it is undisputed that Alico’s vehicles most fre-
quently leave from and return to Connecticut (state A).
The plaintiffs contend, nonetheless, that § 12-71 (f)
fails the internal consistency test because it does not
provide a credit for the taxes that Alico pays to Massa-
chusetts. In support of this contention, the plaintiffs
cite two cases in which the United States Supreme
Court struck down a tax because it offered no such
credit11 and two other cases in which the court upheld
a tax because it did.12 The plaintiffs further note that
the United States Supreme Court ‘‘recently reaffirmed
the saving nature of tax credits’’ in Comptroller of the
Treasury v. Wynne, supra, 575 U.S. 568, in which the
court observed that ‘‘Maryland could remedy the infirmity
in its tax scheme by offering, as most [s]tates do, a
credit against income taxes paid to other [s]tates. . . .
If it did, Maryland’s tax scheme would survive the inter-
nal consistency test and would not be inherently dis-
criminatory.’’ (Citation omitted.) The plaintiffs’ reliance
on the cited cases is misplaced because, as the cases
themselves reveal, the saving grace of tax credits comes
into play under the commerce clause only if the tax
scheme needs saving, which occurs only if the statute
is internally inconsistent, meaning that, if every state
were to apply it, it would result in multiple taxation.
As we explained, however, § 12-71 (f) presents no such
risk of multiple taxation.13
The fact that Alico is subject to multiple taxation as
a result of its decision to register its vehicles in Mass-
achusetts and to garage them in Somers does not render
§ 12-71 (f) discriminatory.14 See, e.g., Chase Manhattan
Bank v. Gavin, supra, 249 Conn. 211 (‘‘not all risks of
multiple taxation run afoul of the dormant commerce
clause, because it is not the purpose of the clause to
relieve those engaged in interstate commerce from
bearing their fair share of state tax burdens’’). In Wynne,
the United States Supreme Court drew a ‘‘critical dis-
tinction . . . between discriminatory tax schemes
[that violate the commerce clause] and double taxation
that results only from the interaction of two different
but nondiscriminatory tax schemes.’’ (Emphasis added.)
Comptroller of the Treasury v. Wynne, supra, 575 U.S.
566. The court explained that, ‘‘[b]y hypothetically
assuming that every [s]tate has the same tax structure,
the internal consistency test allows courts to isolate
the effect of a . . . [s]tate’s tax scheme. This is a virtue
of the test because it allows courts to distinguish
between (1) tax schemes that inherently discriminate
against interstate commerce without regard to the tax
policies of other [s]tates, and (2) tax schemes that cre-
ate disparate incentives to engage in interstate com-
merce (and sometimes result in double taxation) only
as a result of the interaction of two different but nondis-
criminatory and internally consistent schemes. . . .
The first category of taxes is typically unconstitutional;
the second is not.’’ (Citations omitted; emphasis added.)
Id., 562; see also Moorman Mfg. Co. v. Bair, 437 U.S.
267, 277, 98 S. Ct. 2340, 57 L. Ed. 2d 197 (1978) (‘‘[e]ven
assuming some [taxation] overlap[s], [the court] could
not accept [the] appellant’s argument that Iowa, rather
than Illinois, was necessarily at fault in a constitutional
sense’’); Moorman Mfg. Co. v. Bair, supra, 277 n.12
(‘‘The simple answer . . . is that whatever [tax] dispar-
ity may . . . [exist between the Iowa and Illinois
income tax schemes, it] is not attributable to the Iowa
statute. It treats both local and foreign concerns with
an even hand; the alleged disparity can only be the
consequence of the combined effect of the Iowa and
Illinois statutes, and Iowa is not responsible for the
latter.’’ (Emphasis omitted.)).
Thus, to the extent Alico pays multiple taxes on its
vehicles, it is because of the combined effect of Con-
necticut’s and Massachusetts’ different and nondiscrim-
inatory tax schemes—one of which taxes vehicles on
the basis of their physical location and the amount of
time that they are in the state, and the other that taxes
vehicles on the basis of their registration in the state.
The judgment is affirmed.
In this opinion the other justices concurred.
1
Although § 12-71 has been amended since the events at issue in this
appeal; see Public Acts 2023, No. 23-204, § 215; Public Acts 2022, No. 22-
118, § 503; those amendments have no bearing on the merits of this appeal.
In the interest of simplicity, we refer to the current revision of the statute.
2
The Board of Assessment Appeals of the Town of Somers (board), Clyde
G. Knorr, Jr., Walter E. Topliff, Jr., Francis W. Devlin, Jr., George J. Roberts,
Jr., and Donald W. Gaskell were also named as defendants. The complaint
was subsequently withdrawn as to the individual defendants. For conve-
nience, we refer to the town and the board collectively as the defendants
and individually by name when appropriate.
3
The plaintiffs appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
4
Alico registered the Chevrolet Silverado in Connecticut in August, 2021.
At the time of the trial court’s judgment, however, the Cadillac Escalade
was still registered in Massachusetts.
5
Alico subsequently listed the two vehicles on its 2019 personal property
declaration with a notation that it paid taxes on the vehicles in Massachu-
setts. Alico did not file a personal property declaration in any other year
for which it was assessed penalties.
6
Counts one and two of the complaint alleged wrongful assessment and
excessive assessment, respectively. The trial court concluded that the vehi-
cles were subject to taxation under § 12-71 (f) but that the valuations utilized
by the tax assessor were ‘‘manifestly excessive,’’ and the court reduced
them. The court also reversed the 25 percent tax penalty that the assessor
had imposed on Alico for the 2019 tax year but upheld the other penalties.
The defendants have not challenged the court’s judgment with respect to
these issues.
7
Chapter 60A of the Annotated Laws of Massachusetts, § 1, provides in
relevant part: ‘‘Except as hereinafter provided, there shall be assessed and
levied in each calendar year on every motor vehicle . . . registered under
chapter ninety, for the privilege of such registration, an excise measured
by the value thereof, as hereinafter defined and determined, at the rate of
twenty-five dollars per thousand of valuation. . . .’’
8
The defendants argue that § 12-71 (f) cannot violate the dormant com-
merce clause as a matter of law because it does not impose a tax on
commerce at all but, instead, assesses a property tax solely on the basis of
where a vehicle is located a majority of the time (i.e., most frequently leaves
from and returns to). This argument has previously been rejected by the
United States Supreme Court. See Camps Newfound/Owatonna, Inc. v.
Harrison, 520 U.S. 564, 574–75, 117 S. Ct. 1590, 137 L. Ed. 2d 852 (1997)
(‘‘The [t]own also argues that the dormant [c]ommerce [c]lause is inapplica-
ble because a real estate tax is at issue. We disagree. A tax on real estate,
like any other tax, may impermissibly burden interstate commerce. . . .
To allow a [s]tate to avoid the strictures of the dormant [c]ommerce [c]lause
by the simple device of labeling its discriminatory tax a levy on real estate
would destroy the barrier against protectionism that the [c]onstitution pro-
vides.’’ (Citation omitted.)).
9
A court will consider the internal structure and isolated effect of a tax
to determine whether it is internally consistent; see Comptroller of the
Treasury v. Wynne, supra, 575 U.S. 562; whereas, to assess external consis-
tency, the court will look to the ‘‘economic justification for the [s]tate’s
claim [on] the value taxed . . . .’’ Oklahoma Tax Commission v. Jefferson
Lines, Inc., supra, 514 U.S. 185.
10
The plaintiffs argue that, because § 12-71 (f) is not internally consistent,
the external consistency portion of the fair apportionment test ‘‘is not rele-
vant.’’ Therefore, we do not address this issue.
11
See Comptroller of the Treasury v. Wynne, supra, 575 U.S. 568; Tyler
Pipe Industries, Inc. v. Dept. of Revenue, 483 U.S. 232, 246, 248–49, 107 S.
Ct. 2810, 97 L. Ed. 2d 199 (1987).
12
See Goldberg v. Sweet, 488 U.S. 252, 264–65, 109 S. Ct. 582, 102 L. Ed.
2d 607 (1989); D.H. Holmes Co., Ltd. v. McNamara, 486 U.S. 24, 31, 108 S.
Ct. 1619, 100 L. Ed. 2d 21 (1988).
13
The plaintiffs argue that § 12-71 (f) violates the dormant commerce
clause because it is an ad valorem tax, and the Massachusetts tax, although
labeled an ‘‘excise’’ tax, is a functionally identical ad valorem tax. In making
this argument, the plaintiffs rely on a line of cases holding that courts,
when evaluating the constitutionality of a tax scheme under the dormant
commerce clause, must consider the ‘‘practical operation’’ of a tax rather
than the name ascribed to it by the legislature. See, e.g., Nelson v. Sears,
Roebuck & Co., 312 U.S. 359, 363, 61 S. Ct. 586, 85 L. Ed. 888 (1941) (‘‘[i]n
passing on the constitutionality of a tax law, [courts] are concerned only
with its practical operation, not its definition or the precise form of descrip-
tive words [that] may be applied to it’’ (internal quotation marks omitted)).
These cases do not advance the plaintiffs’ argument, however, because we
are not passing on the constitutionality of chapter 60A of the Annotated
Laws of Massachusetts, § 1. Our only concern is the constitutionality of
§ 12-71 (f). We also agree with the trial court’s observation that the tax
authorized by the Massachusetts statute is distinct from the property tax
authorized by § 12-71 (f), not only in name, but in its purpose and character
as well. Chapter 60A of the Annotated Laws of Massachusetts, § 1, authorizes
the assessment of a yearly tax on each vehicle registered in the state of
Massachusetts ‘‘for the privilege of such registration . . . .’’ Although the
tax is calculated on the basis of the value of the vehicle, namely, a percentage
of the manufacturer’s suggested retail price at a rate of twenty-five dollars
per thousand dollars; Mass Ann. Laws c. 60A, § 1 (LexisNexis Cum. Supp.
2023); that fact alone does not negate its character as an excise tax. See
Associated Industries of Massachusetts, Inc. v. Commissioner of Revenue,
378 Mass. 657, 667, 393 N.E.2d 812 (1979) (‘‘[t]he fact that a tax on the
exercise of a privilege is adjusted in whole or in part to property values
does not deprive the tax of its character as an excise; taxes so adjusted
have been upheld repeatedly as excises’’). Courts repeatedly have construed
chapter 60A, § 1, as an excise tax. See, e.g., In re Appugliese, 210 B.R. 890,
897 (Bankr. D. Mass 1997) (rejecting debtor’s claim that chapter 60A, § 1,
operates as property tax); O’Brien v. State Tax Commission, 339 Mass. 56,
65, 158 N.E.2d 146 (1959) (reviewing legislative history of chapter 60A, § 1,
and concluding tax is excise on privilege of registration).
14
Although the plaintiffs assert in their reply brief that payment of both
Massachusetts and Connecticut taxes was unavoidable, we disagree. Chapter
90 of the Annotated Laws of Massachusetts, § 3, permits a Massachusetts
corporation to lawfully register its vehicles in another state under the follow-
ing conditions: ‘‘(1) [the corporation] must have a place of business in
another [s]tate or foreign country; (2) the vehicle must be a commercial
motor vehicle, trailer, or [semitrailer], and must be used in connection with
the place of business; (3) the vehicle must be customarily garaged in the
jurisdiction in which the place of business is located; and (4) it must be
registered there.’’ Companion v. Colombo, 338 Mass. 620, 623, 156 N.E.2d
692 (1959); see id. (construing requirements of chapter 90 of the Annotated
Laws of Massachusetts, § 3). Thus, there is no unavoidable requirement that
a Massachusetts corporation register its vehicles in that state.
In the present case, Alico’s Chevrolet Silverado was originally registered
as a commercial vehicle in Massachusetts and was subsequently registered
in Connecticut, thereby avoiding the excise tax under chapter 60A of the
Annotated Laws of Massachusetts, § 1. However, the Cadillac Escalade,
which was registered in Massachusetts as a passenger vehicle, is still regis-
tered in Massachusetts. These conditions on registering a corporation’s
vehicles outside of Massachusetts do not render the plaintiffs’ decisions to
purchase a passenger vehicle, to register it in Massachusetts, and to garage
it in Connecticut involuntary. The plaintiffs could have avoided the Massa-
chusetts excise tax by purchasing only commercial vehicles for use in con-
nection with their business. Alternatively, the plaintiffs could have avoided
the tax in Connecticut by not garaging the vehicles in Somers.