Ghegan & Ghegan, Inc. v. Weiss

Robert L. Brown, Justice,

concurring. I write to emphasize that this opinion is limited to its facts. By that, I mean limited to a fact situation where it is clearly documented in writing that the taxpayer has passed on payment of the precise tax to a third party. I underscore this because at oral argument counsel for Ghegan contended that any party in the sales chain, including the consuming public, would have standing to bring a class action illegal-exaction lawsuit by merely asserting partial or full payment of a tax by virtue of a hike in the price of the goods. That goes way too far in my opinion in determining who is “interested” for purposes of Article 16, Section 13, of the Arkansas Constitution.

I also take issue with the majority’s lament that if a distributor passes on the tax, it has no incentive to contest its legality. I disagree with such an absolute conclusion. Once the $2.00 per gallon tax on soft-drink syrup begins to curtail a distributor’s sales (as compared to the twenty-one cents per gallon for soft drinks produced by powder), the distributor’s incentive to contest the disparity in tax treatment would become very real indeed. I can readily see a distributor’s bringing an equal protection lawsuit under these circumstances, even though it has passed on the cost of the tax to a retailer.

Thornton, J., joins.