BEFORE THE UTAH STATE TAX COMMISSION
Petitioners, : FINDINGS OF FACT,
: CONCLUSIONS OF LAW
v. : AND FORMAL DECISION
: Appeal No. 87-1005
AUDITING DIVISION OF THE :
UTAH STATE TAX COMMISSION, : Account No. XXXXX
STATEMENT OF CASE
This matter came before the Utah State Tax Commission pursuant to the Utah Administrative Procedures Act for a formal hearing on XXXXX, before Joseph G. Linford, Presiding Officer. No one representing Petitioners was present at the hearing. Notices of the hearing mailed to Petitioners have been returned with no forwarding address, and additional efforts by the Respondent to discover the current address of Petitioners have proved futile. Respondent was represented by XXXXX, Assistant Utah Attorney General, and by XXXXX of the Auditing Division of the Utah State Tax Commission. After reviewing the evidence and arguments of the parties in the record and the recommendation of the presiding officer, the Tax Commission hereby makes its:
FINDINGS OF FACT
1. The tax in question is income tax.
2. The period in question is XXXXX.
3. Petitioners are husband and wife. Petitioner, XXXXX, is an enrolled member of the XXXXX Tribe.
4. Petitioner, XXXXX, is an enrolled member of the XXXXX Indian Community.
5. Petitioners filed a XXXXX Utah resident long form individual income tax return, excluding as "Indian income" on that return the amount of $$$$$ received as wages, salaries, tips, etc. earned by them in Utah.
6. None of the income earned by Petitioner, XXXXX, during XXXXX was earned by him while he was employed on or residing on an Indian reservation of a tribe of which XXXXX was an enrolled member. The income of Petitioner, XXXXX, was earned by her while employed or residing on the Indian reservation on which she was an enrolled member.
7. Respondent disallowed the exclusion on Petitioners' XXXXX income tax return which resulted in a liability of $$$$$ and a tax deficiency of $$$$$ plus interest. No penalty was assessed.
8. On XXXXX, Petitioners filed a Petition for Redetermination on the basis that their income was Indian income and therefore not subject to state taxation.
CONCLUSIONS OF LAW
1. Petitioner relies upon the United States Supreme Court case of McClanahan v. State Tax Commission of Arizona, 411 U.S. 164 (1973). In this case the Court held that the XXXXX had no authority to tax the income of an Indian earned exclusively on the reservation. The ruling did not indicate whether the result would have been different if the taxpayer had been an Indian who resided and earned all of his income on a reservation for a tribe other than the tribe in which the Indian was an enrolled member. As a result of this ruling, a number of states including Utah ceased attempting to tax income earned by Indians while they were living on reservations.
2. Subsequent to this the United States Supreme Court handed down its decision in Washington v. Confederated Tribes of Coleville Indian Reservation, 447 U.S. 134 (1980). The relevant issue in that case involved whether the State of Washington could tax cigarettes sold on a reservation. The Court's discussion on this issue is as follows:
The State asserts the power to apply its sales and cigarette taxes to Indians resident on the reservation but not enrolled in the governing Tribe. The issue arose in the Yakima case in the wake of the District Court's determination that the state retail sales tax could be applied to the purchase by non-Indians of goods other than cigarettes. It was, of course, quite clear after [Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976)] and XXXXX that the sales tax could not be applied to similar purchases by tribal members, but the State argued that this exemption should not extend to nonmembers of the Tribe. Relying in part on the lower court opinion in Moe, Confederated Salish & Kootenai v. Moe, 392 F. Supp. 1297, 1312 (Mont. 1975) (three judge court), the District Court rejected the contention. 446 F. Supp., at 1371-1372. This Court did not reach the question in Moe because Montana failed to raise it on appeal. We do reach it now, and we reverse. Federal statutes, even given the broadest reading to which they are reasonably susceptible, cannot be said to pre-empt Washington's power to impose its taxes on Indians not members of the Tribe. We do not so read the Major Crimes Act, 18 U.S.C. §1153, which at most provides for federal-court jurisdiction over crimes committed by Indians on another Tribe's reservation. Cf. United States v. Antelce, 430 U.S. 641, 646-647 (1977). Similarly, the mere fact that nonmembers resident on the reservation come within the definition of "Indian" for purposes of the Indian Reorganization Act of 1934, 48 Stat. 988, 25 U.S.C. §479, does not demonstrate a congressional intent to exempt such Indians from state taxation. Nor would the imposition of Washington's tax on these purchases contravene the principle of tribal self-government, for the simple reason that nonmembers are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements. We find, therefore, that the State's interest in taxing these purchaser's outweighs any tribal interest that may exist in preventing the State from imposing its taxes. 447 U.S. at 160-61.
3. Though the Court's decision in Confederated Tribes dealt specifically with the issue of a cigarette tax, yet its language is very broad and would include income tax as well. It is therefore clear under that decision that a state may impose taxes on Indians working on reservations of tribes in which the Indians are not enrolled members.
DECISION AND ORDER
Based on the foregoing, it is the decision and order of the Utah State Tax Commission that the request of Petitioners is denied.
DATED this 17 day of April, 1990.
BEFORE THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger O. Tew
Joe B. Pacheco G. Blaine Davis