COURT OF
APPEALS DECISION DATED AND
RELEASED March
13, 1997 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3098
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
ANR
Pipeline Company,
Plaintiff-Appellant,
v.
Department
of Revenue and Mark D. Bugher in
his
official capacity as the Secretary of the
Wisconsin
Department of Revenue and all
persons
acting under him, The Office of the
State
Treasurer, and Cathy S. Zeuske in her
official
capacity as Treasurer of the State of
Wisconsin,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Dane County: GERALD C. NICHOL, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Dykman, P.J.,
Roggensack and Deininger, JJ.
DEININGER,
J. ANR Pipeline Co. (ANR) appeals from an order dismissing its
Uniformity Clause claims against the Wisconsin Department of Revenue
(DOR). The issues are: (1) whether
the thirty-day deadline for requesting a redetermination of tax assessments,
contained in § 76.08, Stats.,
bars ANR's claims for the years 1988 through 1992; and (2) whether allegations
that DOR assessed 100% of the value of ANR's personal property, while exempting
80% of certain railroads' personal property, state a claim for violation of the
Uniformity Clause of the Wisconsin Constitution.[1] We conclude that ANR's claims for 1988
through 1992 are barred by its failure to comply with § 76.08 for those
years, but that the trial court erred in dismissing the Uniformity Clause claim
for 1993. Thus, we affirm in part and
reverse in part.
BACKGROUND
ANR
owns and operates an interstate pipeline which transports natural gas through
several states, including Wisconsin.
Pipelines, railroads and certain other entities are assessed and taxed
according to the same method. See § 76.07, Stats.[2]
In
1988, four railroads operating in Wisconsin sued the State in federal court,
claiming that taxation of 100% of the assessed value of their personal property
violated the "4-R Act." The
4-R Act prohibits states from, among other things, imposing higher property tax
rates and assessment ratios on "rail transportation property" than on
"other commercial and industrial property."[3] As of 1988, the Eighth Circuit Court of
Appeals had held that exempting various classes of commercial and industrial
property from ad valorem taxation while not doing so for railroad property
violated the 4-R Act.[4]
DOR,
pursuant to its interpretation of the 4-R Act at the time, entered into a
stipulated settlement order with the railroads in which DOR agreed not to
collect the property tax imposed by statute with respect to 80% of the value of
the personal property of each railroad operating in Wisconsin for the year
1988.[5] DOR then continued to annually grant the
railroads what was essentially an 80% exemption from taxation of personal
property for the years 1989 through 1993.
ANR
commenced this action under § 76.08, Stats.,
on November 11, 1993, for redetermination of DOR's October 12, 1993, assessment
of its real and personal property in Wisconsin. While conducting discovery, ANR learned that DOR had been
exempting 80% of railroads' personal property from taxation since 1988. ANR then amended its original complaint,
alleging, inter alia, that the taxes assessed on it by DOR violated
ANR's right to uniform taxation under the Wisconsin Constitution. ANR claimed it was entitled to partial
refunds of the taxes it paid for the years 1988 through 1993.[6]
Specifically,
ANR's "Third Claim" of its first amended complaint contained the
following allegations:
14. In
or around April, 1989, the [DOR] began exempting from Wisconsin property
taxation under §§76.01 et seq., Stats., 80% of the personal property of
railroads operating in the State. These
exemptions became effective for the 1988 tax year and were given by the [DOR]
through a mistaken belief that federal law required such exemptions. However, by the terms of §§76.01 et seq.
Stats. such exempted property was and is subject to taxation.
15. The Secretary and the
[DOR], however, did not seek to amend existing Wisconsin tax statutes nor to
comply with existing Wisconsin tax statutes as to the railroads but continued
to tax all personal property of pipelines even though pipelines were in the
same statutory classification as railroads and were entitled to equal treatment
and uniform taxation under the Wisconsin Constitution and statutes.
....
20. The
above-described practices deprive ANR of the right to uniform taxation under
the Wisconsin Constitution.
In
January 1994, the United States Supreme Court decided Department of
Revenue v. ACF Industries, Inc., 510 U.S. 332 (1994), in which the
Court held that the 4-R Act did not require states to reduce railroads'
ad valorem taxes commensurate with the specific property exemptions granted to
commercial and industrial property. Id.
at 342. DOR then issued an assessment
to the railroads requiring them to pay the taxes which DOR had not collected
prior to the decision in ACF Industries. The railroads unsuccessfully challenged the
back assessments in federal court,[7]
and are currently challenging the assessments in the circuit court for Dane
County.[8]
DOR
moved to dismiss ANR's claims for tax years 1988 through 1992, claiming that
ANR's failure to request a redetermination of its tax assessments within thirty
days of each assessment, as required by § 76.08(1), Stats., barred the claims for those
years.[9] DOR also moved to have all Uniformity Clause
claims dismissed for failure to state a claim upon which relief can be granted.
It did not otherwise answer ANR's complaint.
The
trial court granted the motion to dismiss as to all the claims for tax years
1988 through 1993. The court concluded
that ANR's failure to comply with the thirty-day deadline under § 76.08, Stats., barred the claims for 1988
through 1992, and that the claim for 1993 was no longer at issue because the
parties had settled the amount of taxes owing for the year 1993. ANR appeals from the order dismissing its claims.
DOR
moved for a stay of this appeal and for this court to take judicial notice of
the documents in an appendix it filed.
We denied the stay, concluding that the appeal is appropriate for a
decision in its present posture, and held the motion for judicial notice in
abeyance pending our opinion deciding the appeal.
ANALYSIS
a. Procedural Posture; Standard of Review
Attached to its trial
court briefs in support of its motion to dismiss, DOR submitted appendices
containing excerpts from DOR's manuals for taxation of ch. 76 utilities, a copy
of the stipulation it entered into with the railroads regarding the railroads'
taxation for 1988, DOR's annual review of applicable case law prior to the
decision in Department of Revenue v. ACF Industries, Inc., 510
U.S. 332 (1994), and a few other documents.
The trial court considered most of these materials in ruling on DOR's
motion.[10]
The
materials submitted by DOR to the trial court on its motion to dismiss are the
same documents of which it is requesting we take judicial notice. We previously granted DOR's motion to
supplement the trial court record with its trial briefs. We therefore do not see the need for the
court to take "judicial notice" of documents already in the record. We thus deny DOR's motion to take judicial
notice of the documents.[11]
Whether
a claim is barred by sovereign immunity and whether a complaint states a claim
for which relief can be granted are matters of law which we review de novo,
owing no deference to the trial court's determination. See Heinritz v. Lawrence Univ.,
194 Wis.2d 606, 610, 535 N.W.2d 81, 83 (Ct. App. 1995) (complaint); Lindas
v. Cady, 142 Wis.2d 857, 861, 419 N.W.2d 345, 347 (Ct. App. 1987)
(sovereign immunity). Since pleadings
are to be liberally construed, a claim will be dismissed only if it is
"`quite clear that under no conditions can the plaintiff
recover.'" Evans v. Cameron,
121 Wis.2d 421, 426, 360 N.W.2d 25, 28 (1985) (quoted source omitted).
It
could be argued that because the trial court considered matters outside of
ANR's complaint, we are required to employ summary judgment methodology in our
review. See § 802.06(2)(b),
Stats. Consideration of either a motion to dismiss or one for summary
judgment begins at the same place, however:
with a determination whether the complaint states a proper claim. As we will discuss, disposition of the
claims for years 1988 through 1992 does not require that we look beyond ANR's
complaint. As to the claim for 1993, we
conclude that ANR's complaint states a claim for violation of the Uniformity
Clause. We further conclude that even
if the materials regarding DOR's dealings with the railroads are considered,
ANR's claim for 1993 may not be dismissed on this record.
b. Claims
for 1988 through 1992: Section 76.08, Stats.
Section
76.08, Stats., states:
(1)
... Any company aggrieved by the assessment [under § 76.07, Stats.] ... of its property thus made
may have its assessment ... redetermined by the Dane county circuit court if
within 30 days after notice of assessment ... is mailed to the company under s.
76.07(3) an action for the redetermination is commenced ....
The trial court concluded that ANR's failure to meet the
thirty-day deadline prescribed by § 76.08, Stats., barred its claims for years 1988 through 1992 under
the doctrine of sovereign immunity. We
agree.
Under
the doctrine of sovereign immunity, the state cannot be sued without its
consent. Lister v. Board of
Regents, 72 Wis.2d 282, 291, 240 N.W.2d 610, 617 (1976).[12] The principles of sovereign immunity apply
to the state and its administrative arms and agencies which have no independent
propriety powers or functions. See Majerus
v. Milwaukee County, 39 Wis.2d 311, 314-15, 159 N.W.2d 86, 87-88
(1968). Where the state consents to
suit subject to certain conditions, those conditions must be strictly complied
with by a party pursuing a claim against the state:
"It is not disputed that it is an established
principle of law that no action will lie against a sovereign state in the
absence of express legislative permission.
It is further established that when a sovereign permits itself to be sued
upon certain conditions, compliance therewith is a jurisdictional matter, and a
suit against the sovereign may not be maintained unless such conditions are
complied with."
Metzger v. Wisconsin Dep't of Taxation, 35 Wis.2d 119, 131-32, 150 N.W.2d 431, 437 (1967)
(quoting Martin v. Reis, 230 Wis. 683, 685, 284 N.W. 580, 581
(1939)).
ANR
first argues that by allowing suits for redetermination of tax assessments in
§ 76.08, Stats., the State
has "waived its sovereign immunity."
As we have noted above, enactment of a statute permitting suit upon expressed
conditions "waives" sovereign immunity only if those conditions are
fulfilled. See Metzger,
35 Wis.2d at 131-32, 150 N.W.2d at 437.
Waiver can occur, however, if the defense of sovereign immunity is not
timely raised. The supreme court has
held that sovereign immunity is "a matter of personal jurisdiction which
may be waived" if the State has not "sufficiently raised" the
defense in the trial court. Lister,
72 Wis.2d at 296-97, 240 N.W.2d at 619-20; see City of Kenosha v.
State, 35 Wis.2d 317, 327, 151 N.W.2d 36, 41 (1967). Here, however, there is no dispute that the
State raised the defense of sovereign immunity in its motion to dismiss.
ANR
next argues that the State should be estopped from raising the defense of
sovereign immunity because the State's own actions prevented ANR from making
timely claims for the years 1988 through 1992.
Specifically, ANR asserts that DOR's "failure to disclose its
secret deal with the railroads" prevented it from filing its Uniformity
Clause claims earlier. Citing DOR
v. Family Hospital, Inc., 105 Wis.2d 250, 313 N.W.2d 828 (1982), ANR
contends that "[t]he Department, like any other litigant, is subject to
equitable estoppel if the facts justify it." In Family Hospital, the supreme court held that DOR
was estopped from assessing a sales tax on parking receipts where the hospital
reasonably relied on a memorandum issued by DOR which exempted the receipts
from sales tax. Id. at
256, 313 N.W.2d at 830. The hospital
had apparently complied with applicable statutory requirements for obtaining
review of DOR's tax assessment by the Tax Appeals Commission. The Commission reversed the assessment, and
DOR sought court review. Sovereign immunity
was not at issue in the case.
Even
if a state agency may be estopped by prior conduct from asserting a claim
against a taxpayer, it does not necessarily follow that a taxpayer can cite an
agency's conduct in an attempt to avoid the State's assertion of sovereign
immunity. The supreme court in Lister
stated "it appears that the principle of estoppel will not be applied to
deprive a state of its sovereign rights."
Lister, 72 Wis.2d at 294 & n.9, 240 N.W.2d at 618-19; see
Kegonsa Joint Sanitary Dist. v. City of Stoughton, 87 Wis.2d 131,
144, 274 N.W.2d 598, 604 (1979); Green v. Osborne, 758 P.2d 138,
140 (Ariz. 1988) (state may not be estopped by unauthorized acts of officers or
employees if sovereign functions affected); see also P.H. Vartanian,
Annotation, Applicability of doctrine of estoppel against government and its
governmental agencies, 1 A.L.R.2d 338, 340 § 2 (1948) (state more
susceptible to estoppel where it is moving party, asserting rights similar to
private litigant, as opposed to when it defends against rights asserted in
derogation of its sovereignty).
We
conclude that ANR may not avail itself of the principles of estoppel against
the State's assertion of sovereign immunity.
Its failure to timely file under § 76.08, Stats., for the years 1988 through 1992 is fatal to the
claims for those years. If harsh
results flow from the doctrine of sovereign immunity, ANR must seek its
remedies from the legislature, not the courts.
Erickson Oil Products, Inc. v. State, 184 Wis.2d 36, 54,
516 N.W.2d 755, 761 (Ct. App. 1994).
ANR's
failure to request a redetermination of the tax assessments for the years 1988
through 1992 within the thirty-day period specified in § 76.08, Stats., deprived the trial court of
personal jurisdiction over the State for those claims. See City of Kenosha v. State,
35 Wis.2d 317, 327-28, 151 N.W.2d 36, 41-42 (1967); see also Hermann v.
Town of Delavan, No. 96-0171, slip op. at 5 (Wis. Ct. App. Dec. 27,
1996, ordered published Feb. 25, 1997) (Uniformity Clause claim subject to
dismissal if statutory requirements for review of assessment not complied
with). The trial court properly
dismissed ANR's claims for 1988 through 1992.
c. Uniformity Clause
ANR requested a
redetermination of its tax assessment for the year 1993 within the thirty-day
deadline specified in § 76.08, Stats.[13] In its amended complaint, ANR claimed that
the 80% exemption granted to the railroads violated the Uniformity Clause of
the Wisconsin Constitution. See Wis. Const. art. VIII, § 1. DOR contends that ANR has not stated a claim
for a Uniformity Clause violation. We
disagree and conclude that the trial court erred in dismissing the 1993 claim.
The
Wisconsin Supreme Court has determined that for a tax to conform to the
Uniformity Clause, it must meet the following standards:
1. For
direct taxation of property, under the uniformity rule there can be but one
constitutional class.
2. All
within that class must be taxed on a basis of equality so far as practicable
and all property taxed must bear its burden equally on an ad valorem basis.
3. All
property not included in that class must be absolutely exempt from property
taxation.
4. Privilege
taxes are not direct taxes on property and are not subject to the uniformity
rule.
5. While
there can be no classification of property for different rules or rates of
property taxation, the legislature can classify as between property that is to
be taxed and that which is to be wholly exempt, and the test of such
classification is reasonableness.
6. There can be variations in the mechanics
of property assessment or tax imposition so long as the resulting taxation
shall be borne with as nearly as practicable equality on an ad valorem
basis with other taxable property.
Gottlieb v. City of Milwaukee, 33 Wis.2d 408, 424, 147 N.W.2d 633, 641-42 (1967)
(emphasis supplied).
DOR
first argues that the Uniformity Clause is satisfied because ch. 76 has always
provided for uniform taxation of railroads' and pipelines' personal
property. However, the Wisconsin
Supreme Court has held that the Uniformity Clause requires more than uniform
treatment within the statutory language.
The Uniformity Clause requires that "`each step taken must be
uniform. The valuation must be uniform,
the rate must be uniform.'" Id.
at 419, 147 N.W.2d at 639 (quoting Knowlton v. Supervisors of Rock County,
9 Wis. 378 [*410], 388 [*420-21] (1859)).
We conclude that the uniform statutory treatment of pipelines and
railroads in ch. 76 satisfies the Uniformity Clause only if the chapter is
administered so as to accomplish uniformity.
ANR's claim is that it was not so administered.
DOR
acknowledges that it granted the railroads what is, in effect, an 80% exemption
for 1993. The Wisconsin Supreme Court
has held that even the legislature cannot grant partial exemptions for taxation
of property. In Gottlieb,
the supreme court held that the "Urban Redevelopment Law," providing
for a partial exemption from property taxes for property held by certain
redevelopment corporations, violated the Uniformity Clause. The court noted that while the aim of
legislation may be "socially desirable," if it is legislation that
produces "less of [a] tax burden on the true ad valorem basis than
[it] does [on] other property," it violates the Uniformity Clause. Gottlieb, 33 Wis.2d at 426-29,
147 N.W.2d at 643-44. Under the
Uniformity Clause, "`[t]he legislature can, with uniformity, exempt
property from taxes, but it cannot partially exempt particular property.'" Id. at 425, 147 N.W.2d at 642
(quoting Ehrlich v. City of Racine, 26 Wis.2d 352, 356, 132
N.W.2d 489, 490-91 (1965)). We thus
conclude that ANR's complaint states a proper claim that DOR violated the
Uniformity Clause when assessing ANR's property in 1993.
In
reaching its conclusion that ANR has not stated a proper claim for a Uniformity
Clause violation, the trial court relied in part on the previously described
documents appended to DOR's trial brief.
Even if these documents were deemed properly before the court, however,
the present record would not permit us to affirm the dismissal of ANR's 1993
claim. The materials do not establish
that there is no set of facts ANR might prove in order to show that DOR's
action in exempting 80% of railroad personal property in 1993 violated the
Uniformity Clause.
The
trial court, citing Gottlieb and State ex rel. Fort Howard
Paper Co. v. Lake District Board of Review, 82 Wis.2d 491, 263 N.W.2d
178 (1978), concluded that given the various federal court decisions regarding
state taxation of railroads prior to Department of Revenue v. ACF
Industries, Inc., 510 U.S. 332 (1994), "[s]o far as practicable,
the state attempted under the circumstances to tax in compliance with the
uniformity clause." The court further concluded that "under the
present set of facts there is an allowable exception to the uniformity
rule." The "allowable
exception" apparently derives from the "so far as practicable"
language cited, and involves concepts of good faith, federal preemption and
actions taken in settlement of litigation.
DOR makes similar arguments on appeal.[14]
In
Gottlieb, however, the supreme court did not discuss what is
meant by the requirement of equality of taxation "so far as
practicable." Gottlieb v.
City of Milwaukee, 33 Wis.2d 408, 147 N.W.2d 633 (1967). In Fort Howard, the supreme
court specifically declined to rule whether potential inequities in taxation
resulting from a revaluation plan which would take four years to accomplish
would meet the requirement that the tax burden be equal "so far as
practicable." Fort Howard,
82 Wis.2d at 510 & n.9, 263 N.W.2d at 188.[15]
Whether
DOR's granting an 80% exemption to railroads in adherence to non-binding case
law,[16]
in settlement of litigation for 1988 and informally thereafter, constitutes
uniformity "so far as practicable" is thus a novel question of law in
Wisconsin. The trial court's conclusion
that DOR made its decision to partially exempt the railroad property in good
faith may ultimately be proven correct.
But, the record thus far, let alone ANR's complaint, does not allow for
a determination, as a matter of law, that DOR's actions achieved uniformity
"so far as practicable." A
conclusion that DOR was permitted to do what the legislature may not, must be
grounded we believe, on more than an unanswered complaint and some documents
appended to DOR's trial brief.[17]
Moreover,
a court should not reach a constitutional issue in advance of the necessity of
deciding it. State ex rel. Clarke
v. Carballo, 83 Wis.2d 349, 353, 265 N.W.2d 285, 287, cert. denied,
439 U.S. 964 (1978). DOR asserts that
if it succeeds in its litigation with the railroads to collect back assessments
for the previously exempted property, ANR's Uniformity Clause claim will be
moot. ANR concedes "[t]hat is true
for the years 1989 through 1993," but not for 1988. We have affirmed the dismissal of ANR's
claim for 1988. It thus appears that
the outcome of the pending railroad litigation is at least relevant, if not
crucial, to the outcome of this case.[18]
Thus,
we reverse the trial court's order in so far as it dismisses ANR's claim for
the year 1993. On remand, we suggest
that the trial court consider staying these proceedings until the pending
railroad litigation is concluded.
By
the Court.—Order affirmed in
part; reversed in part and cause remanded.
Not
recommended for publication in the official reports.
[2] Railroads, pipelines and other utilities are
taxed using the unit value method.
Section 76.07, Stats. DOR determines the full market value of the
total property of the taxpayer in and outside Wisconsin, and then allocates a
portion of that system-wide value to Wisconsin. Section 76.07(4g).
[4] See Trailer Train Co. v. Leuenberger,
885 F.2d 415 (8th Cir. 1988), cert. denied, 490 U.S. 1066 (1989); Burlington
N. R.R. Co. v. Bair, 766 F.2d 1222 (8th Cir. 1985); Ogilvie v.
State Bd. of Equalization, 657 F.2d 204 (8th Cir.), cert. denied,
454 U.S. 1086 (1981). In 1989, the
Kansas Department of Revenue entered into consent decrees which, like the 1988
stipulation between Wisconsin's DOR and the railroads, exempted 80% of
railroads' property from taxation. See
In re ANR Pipeline Co., 866 P.2d 1060 (Kan.), cert. denied,
115 S. Ct. 296 (1994). However, in Department
of Revenue v. Trailer Train Co., 830 F.2d 1567 (11th Cir. 1987), the
court of appeals held that exempting business inventory from ad valorem
taxation, an exemption not available to railroads, was not necessarily a
discriminatory tax prohibited by the 4-R Act.
[6] On appeal, the
only substantive issue raised by ANR is that DOR's tax treatment of the
railroads for 1988 through 1993 violated the Uniformity Clause. The valuation dispute that initially
prompted the action for review of the 1993 assessment has been resolved.
[9] ANR does not dispute that it failed to
request redetermination of the tax assessments for 1988 through 1992 within
thirty days of the assessments for those years.
[10] Under § 802.06(2)(b), Stats., where matters outside the
pleadings are presented to and not excluded by the trial court on a motion to
dismiss, the motion must be treated as one for summary judgment. ANR argues that it was not given the
opportunity to respond to these materials as required by the statute
cited. Since we are reversing the trial
court's dismissal of the Uniformity Clause claim, ANR has not been prejudiced
by any lack of opportunity to counter the appended materials.
[11] Two documents which DOR asks us to notice
were apparently not submitted to the trial court: an excerpt from the
Wisconsin Tax Reporter and a copy of a claim with the Claims Board filed by ANR
on April 25, 1995. Neither document is
relied upon in our disposition of this appeal.
[12] In Wisconsin, the doctrine of sovereign
immunity is derived from Wis. Const. art. IV, § 27, which
provides:
[T]he legislature shall direct by law in what manner and
in what courts suits may be brought against the State.
[13] The trial court dismissed the claim for 1993,
concluding that because DOR and ANR had settled the amount of taxes owing for
1993, the issue of a refund for a possible Uniformity Clause violation was
resolved. However, ANR contends, and
DOR concedes, that the constitutional claim raised by ANR in its amended
complaint regarding its 1993 taxes has not been resolved.
[14] For example, DOR argues that "[p]rior to
the Supreme Court's decision in ACF, 114 S. Ct. at 852, the
Department could not have collected the full tax imposed by state law upon
railroad personal property" because the Uniformity Clause was preempted by
the 4-R Act. DOR contends that because
almost every court in other jurisdictions which addressed the issue held that
the 4-R Act preempted state tax classifications, we must hold that the 4-R Act
preempted the Uniformity Clause. None
of the cases cited by DOR were binding on Wisconsin.
The
United States Supreme Court made clear in ACF that the 4-R Act
does not require states to reduce taxation of railroads commensurate with the
property tax exemptions given to commercial and industrial property within the
state. Department of Revenue v.
ACF Indus., Inc., 510 U.S. 332, 342 (1994). With the decision in the ACF, federal preemption is
no longer an issue. We cannot conclude
on this record that, as a matter of law, there was no violation of the
Uniformity Clause because DOR believed it was preempted during the period of
time preceding ACF.
[15] The supreme court did note, however, that
"cyclical revaluation plans have been declared constitutional in a number
of other jurisdictions." Fort
Howard Paper Co. v. Lake Dist. Bd. of Review, 82 Wis.2d 491, 510 n.9,
263 N.W.2d 178, 188 (1978); see also W.W. Allen, Annotation, Real-estate
tax equalization, reassessment, or revaluation commenced but not completed
within the year, as violative of constitutional provisions requiring equal and
uniform taxation, 76 A.L.R.2d 1077 (1961).
[16] Federal court decisions, other than United
States Supreme Court decisions on questions of federal law are not binding on
Wisconsin courts. Thompson v.
Village of Hales Corners, 115 Wis.2d 289, 307, 340 N.W.2d 704, 713
(1983).
[17] ANR points out that the materials before the
trial court shed no light on whether DOR reasonably believed that
it was "compelled" to grant the 80% exemption to the railroads, or on
why it granted the exemption for 1993 even though the State had joined an
amicus brief in Department of Revenue v. ACF Industries, Inc.,
510 U.S. 332 (1994). We agree that
before a constitutional conclusion is reached, better evidence as to precisely
what DOR did, how it was done and why, should be available to the trial court.