421 U.S.

200
95 S.Ct. 1605
44 L.Ed.2d 110

W. M. GURLEY, dba Gurley Oil Company, Petitioner,

v.
Arny RHODEN, etc.
No. 731734.
Argued March 18, 1975.
Decided May 12, 1975.

Syllabus
Mississippi imposes a 5% sales tax upon the 'gross proceeds' of retail sales
of tangible personal property, including gasoline, and such gross proceeds
are computed without deduction for any taxes. Mississippi also imposes a
gasoline excise tax on each gallon sold by a distributor, which in the case
of a distributor bringing gasoline into the State otherwise than by common
carrier, accrues at the time when and at the point where the gasoline is
brought into the State. And a federal gasoline excise tax is imposed on
each gallon sold by a 'producer,' 26 U.S.C. 4081(a), defined to include
any person to whom gasoline is sold tax free, 4082(a). Contending that
the denial of a deduction for the Mississippi and federal excise taxes in
computing the gross proceeds of retail gasoline sales for purpose of the
sales tax was unconstitutional as a taking of property without due process
in violation of the Fourteenth Amendment, and that he acts as a mere
collector of the excise texes whose legal incidence is upon the purchaserconsumer, petitioner, an operator of several service stations in Mississippi
who purchased his gasoline tax free in other States and transported it to
Mississippi in his own trucks, paid the sales taxes under protest and sued
for a refund in state court. His suit was dismissed, and the Mississippi
Supreme Court affirmed, holding that the legal incidence of both excise
taxes is on petitioner and not on the purchaser-consumer. Held: The denial
of the deduction of the Mississippi and federal gasoline excise taxes in
computing the gross proceeds of retail sales for purposes of the sales tax
is not unconstitutional. Pp. 203-212.
(a) As reflected by the language of 26 U.S.C. 4081(a) and 4082(a), and

their legislative history, the legal incidence of the federal excise tax is on
the statutory 'producer,' such as petitioner, and not on his purchaserconsumer. Pp. 204-208.
(b) The Mississippi Supreme Court's holding that the legal incidence of
the state excise tax falls on petitioner, being consistent with a reasonable
interpretation of the statute, is conclusive. Pp. 208-210.
(c) Petitioner's claim that liability for the excise taxes and sales tax arises
simultaneously and results in a sales tax upon the excise tax is without
merit, since the excise taxes attach prior to the point of the retail sale. Pp.
210-211.
(d) Petitioner is not denied equal protection as against dealers in other
States who are not required to include the federal excise tax as part of the
sales tax base, since the prohibition of the Equal Protection Clause is
against its denial by the State as between taxpayers subject to its laws. P.
211-212. 288 So.2d 868, affirmed.
Charles R. Davis, Jackson, Miss., for petitioner.
Hunter M. Gholson, Columbus, Miss., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.

Mississippi imposes a 5% sales tax upon the 'gross proceeds of the retail sales'
of tangible personal property, including gasoline. Miss.Code Ann. 2765
17 (Supp.1974). 1 Petitioner operates as a sole proprietorship from West
Memphis, Ark. He owns and operates five gasoline service stations in
Mississippi and also sells gasoline at four other stations in Mississippi on a
consignment basis. He purchases his gasoline tax free from sources in
Tennessee and Arkansas. He transports the gasoline to his Mississippi stations
in his own trucks. He holds a Mississippi distributor's permit and is also
federally licensed because he is a 'producer' within the meaning of the Internal
Revenue Code as one who sells gasoline bought tax free from other
'producers.'2 He adds to his pump prices the amount of a Mississippi gasoline
excise tax, now nine cents per gallon, Miss.Code Ann. 275511
(Supp.1974), and a federal gasoline excise tax of four cents per gallon, 26
U.S.C. 4081(a).3 The State computes his gross proceeds of retail sales
'without any deduction for . . . taxes of any kind . . ..' Miss.Code Ann. 27 65
3(h) (Supp.1974).4 Petitioner contends that the denial of a deduction of the
amount of the excise taxes added to his pump prices in the computation of his

'gross proceeds of the retail sales' of gasoline, and the resultant application of
the 5% sales tax to so much of his pump prices as reflects the amount of the
taxes, are unconstitutional. He therefore paid the sales taxes to that extent under
protest, and used for a refund in Mississippi Chancery Court, Hinds County.
Respondent cross-claimed for unpaid sales taxes accruing after the filing of the
suit.5 After trial, the Chancery Court dismissed petitioner's suit and entered
judgment for respondent on the cross-claim. The Supreme Court of Mississippi
affirmed. 288 So.2d 868. We granted certiorari, 419 U.S. 1018, 95 S.Ct. 491,
42 L.Ed.2d 291 (1974). We affirm.
2

* Petitioner's principal argument is that he acts as a mere collector of the taxes

for the two governments because the legal incidence of both excise taxes is
upon the purchaser-consumer. Upon that premise, he argues: 'Consequently, to
impose the Mississippi sales tax upon amounts so received by (petitioner)
would be to tax him upon gross receipts which are not his gross receipts, but
rather the gross receipts of (the two governments). This would not only violate
the fundamental conception of right and justice, but it would be taking
(petitioner's) property without due process of the Fourteenth Amendment . . ..'
Brief for Petitioner 37. He cites in support the statement in Hoeper v. Tax
Comm'n, 284 U.S. 206, 215 52 S.Ct. 120, 122, 76 L.Ed. 248 (1931), that 'any
attempt by a state to measure the tax on one person's property or income by
reference to the property or income of another is contrary to due process of law
as guaranteed by the Fourteenth Amendment.' Also, petitioner advances an
alternative argument limited to the denial of the deduction of the amount of the
federal excise tax. He contends that the denial results to that extent in 'a state
tax on . . . monies held in trust by (petitioner) as agent for the United States
(and) is, in essence, a tax upon the United States . . . (that) . . . is clearly
unconstitutional' as violating the constitutional immunity of the United States
and its property from taxation by the States. McCulloch v. Maryland, 4 Wheat.
316, 4 L.Ed. 579 (1819). Brief for Petitioner 48.

Petitioner's arguments can prevail, as he apparently concedes, only if the legal

incidence of the excise taxes is not upon petitioner, but upon the purchaserconsumer. Our task therefore is to determine upon whom the legal incidence of
each tax rests.

II
4

The economic burden of taxes incident to the sale of merchandise is

traditionally passed on to the purchasers of the merchandise. Therefore, the
decision as to where the legal incidence of either tax falls is not determined by
the fact that petitioner, by increasing his pump prices in the amounts of the

taxes, shifted the economic burden of the taxes from himself to the purchaserconsumer. The Court has laid to rest doubts on that score raised by such
decisions as Panhandle Oil Co. v. State of Mississippi ex rel. Knox, 277 U.S.
218, 48 S.Ct. 451, 72 L.Ed. 857 (1928); Indian Motorcycle Co v. United States,
283 U.S. 570, 51 S.Ct. 601, 75 L.Ed. 1277 (1931); and Kern-Limerick, Inc. v.
Scurlock, 347 U.S. 110, 74 S.Ct. 403, 98 L.Ed. 546 (1954), at least under
taxing schemes, as here, where neither statute required petitioner to pass the tax
on to the purchaser-consumer. See Alabama v. King & Boozer, 314 U.S. 1, 62
S.Ct. 43, 86 L.Ed. 3 (1941); Lash's Products Co. v. United States, 278 U.S. 175,
49 S.Ct. 100, 73 L.Ed. 251 (1929); Wheeler Bridge & Supply Co. v. United
States, 281 U.S. 572, 50 S.Ct. 419, 74 L.Ed. 1047 (1930); First Agricultural
Nat. Bank v. State Tax Comm'n, 392 U.S. 339, 88 S.Ct. 2173, 20 L.Ed.2d 1138
(1968); American Oil Co. v. Neill, 380 U.S. 451, 85 S.Ct. 1130, 14 L.Ed.2d 1
(1965).
5

A majority of courts that have considered the question have held in agreement
with the Mississippi Supreme Court in this case, that the legal incidence of the
federal excise tax is upon the statutory 'producer' such as petitioner and not
upon his purchaser-consumer. Martin Oil Service, Inc. v. Department of
Revenue, 49 Ill.2d 260, 273 N.E.2d 823 (1971); People v. Werner, 364 Ill. 594,
5 N.E.2d 238 (1936); Sun Oil Co. v. Gross Income Tax Division, 238 Ind. 111,
149 N.E.2d 115 (1958); State v. Thoni Oil Magic Benzol Gas Stations, Inc.,
121 Ga.App. 454, 174 S.E.2d 224, aff'd, 226 Ga. 883, 178 S.E.2d 173 (1970).
Contra, see Tax Review Board v. Esso Standard Division, 424 Pa. 355, 227
A.2d 657 (1967); cf. Standard Oil Co. v. State, 283 Mich. 85, 276 N.W. 908
(1937); Standard Oil Co. v. State Tax Comm'r, 71 N.D. 146, 299 N.W. 447
(1941). Our independent examination of the federal statute and its legislative
history persuades us also that the legal incidence of the federal tax falls upon
the statutory 'producer' such as petitioner.

The wording of the federal statute plainly places the incidence of the tax upon
the 'producer,' that is, by definition, upon federally licensed distributors of
gasoline such as petitioner. Section 4082(a) provides that '(a)ny person to
whom gasoline is sold tax-free . . . shall be considered the producer of such
gasoline,' and 4081(a) expressly imposes the tax 'on gasoline sold by the
producer . . ..' (Emphasis added.) The congressional purpose to lay the tax on
the 'producer' and only upon the 'producer' could not be more plainly revealed.
Persuasive also that such was Congress' purpose is the fact that, if the producer
does not pay the tax, the Government cannot collect it from his vendees; the
statute has no provision making the vendee liable for its payment. 6 First
Agricultural Nat. Bank v. Tax Comm'n, supra, 392 U.S., at 347, 88 S.Ct., at
2177.

It is true that the purchaser-consumer who buys gasoline for use on his farm, 26
U.S.C. 6420(a), or for other nonhighway purposes, 6421(a), or for a local
transit system, 6421(b), can recover payment of all or part of the amount of
the tax passed on by the 'producer.' But this is not proof that Congress laid the
tax upon the purchaser-consumer. Rather, since the proceeds of this tax go not
into the general treasury, but into a special fund used to defray the cost of the
federal highway system, S.Rep. No. 367, 87th Cong., 1st Sess., p. 1809 (1961),
the refunds authorized simply reflect a congressional determination that,
because the economic burden of such taxes is traditionally passed on to the
purchaser-consumer in the form of increased pump prices, farmers and other
off-highway users should be relieved of the economic burden of the cost of the
highway program, and that the cost shoudl be borne entirely by motorists who
use gasoline to drive on the highways. Martin Oil Service, Inc. v. Department of
Revenue, supra, 49 Ill.2d, at 265, 273 N.E.2d, at 827.

Petitioner cites references by President Johnson to the tax as a 'user tax' as

proving that it is not and never was intended that the tax be imposed upon the
'producer,' but rather upon the purchaser-consumer. President Johnson's
message to Congress of May 17, 1965, on the subject of reform of the excise
tax structure stated that such 'reform . . . will . . . leave . . . excises on alcoholic
beverages, tobacco, gasoline, tires, trucks, air transportation (and a few other
user-charge and special excises) . . ..' H.R.Doc. No. 173, 89th Cong., 1st Sess.,
3 (1965). (Emphasis added.) Petitioner relies also on the report of the House
Committee on Ways and Means accompanying H.R. 8371, H.R.Rep. No. 433,
89th Cong., 1st Sess., 1213 (1965); U.S.Code Cong. & Admin.News 1965,
pp. 16581659. It states: 'Taxes such as those on gasoline . . . are user taxes. . .
. A tax on gasoline taxes users of the highways in rough proportion to their use
of the service.' (Emphasis added.) These references obviously were not made in
the context of consideration of the legal incidence of the gasoline tax but
merely as recognition that the reality is that users bear the economic burden of
the tax. These references were rejected in Martin Oil Service, Inc., supra, by
the Illinois Supreme Court as irrelevant to the question whether the tax must be
considered as one whose incidence rests on the purchaser-consumer. We agree
with, and adopt, that court's analysis:

'We consider the references to the tax as a 'user tax' were not intended to be
descriptive of the legal incidence of the gasoline tax. It is not disputed that the
ultimate economic burden of the tax rests upon the purchaser-consumer. A
practical nontechnical description of the tax as a 'user tax' is explainable,
consistently with the legal incidence of the tax being on the producer. The
economic burden of the tax has no relevance to the issue before us.' 49 Ill.2d, at
264, 273 N.E.2d, at 826.

10

We therefore hold that the Mississippi Supreme Court, which relied upon
Martin Oil Service, Inc., see 288 So.2d, at 873, properly concluded that the
federal excise tax is imposed solely on statutory 'producers' such as petitioner
and not on the purchaser.

III
11

The Mississippi Supreme Court held that the legal incidence of the Mississippi
excise tax also falls upon petitioner. It is true of course that this Court is the
final judicial arbiter of the question where the legal incidence of the federal
excise tax falls. But a State's highest court is the final judicial arbiter of the
meaning of state statutes, Alabama v. King & Boozer, 314 U.S., at 910, 62
S.Ct., at 4546, and therefore our review of the holding of a state court
respecting the legal incidence of a state excise tax is guided by the following:
'When a state court has made its own definitive determination as to the
operating incidence, our task is simplified. We give this finding great weight in
determining the natural effect of a statute, and if it is consistent with the
statute's reasonable interpretation it will be deemed conclusive.' American Oil
Co. v. Neill, 380 U.S., at 455 456, 85 S.Ct., at 1133.

12

This is manifestly a case in which the holding of the Mississippi Supreme Court
that the legal incidence of the state excise tax falls upon petitioner should be
'deemed conclusive.' Mississippi Code Ann. 275511 (Supp.1974)
provides that the tax 'attaches on the distributor or other person for each gallon
of gasoline brought into the state . . .' in the case of distribution of gasoline by
distributors, such as petitioner, who bring gasoline into Mississippi 'by means
other than through a common carrier.' The Mississippi Supreme Court relied
primarily upon this provision in reaching its conclusion, and we cannot say that
its conclusion is not 'consistent with the statute's reasonable interpretation.'

13

Our determination is buttressed by the holding of a three-judge District Court in

United States v. Sharp, 302 F.Supp. 668 (SD Miss.1969). The United States
sought a declaratory judgment that the Mississippi tax was invalid with respect
to gasoline purchased by the Federal Government, its agencies, and personnel
when used on Mississippi highways on Government business. The three-judge
court held that the legal incidence of the state tax was upon the distributorvendor and not upon the purchaser United States, and dismissed the action. The
court stated:

14

'We do not quarrel with the contention that a statute's practical operation and
effect determines where the legal incidence of the tax falls. We simply agree
that the tax burden in the Mississippi statute falls plainly and squarely on the

distributor to whom the state looks for the payment of the tax, albeit the
amount of the tax may ultimately be borne by the vendee, in this case the
federal government.' Id., at 671.
15

Petitioner argues, however, that the decision of the Mississippi Supreme Court
is foreclosed by this Court's decision in Panhandle Oil Co. v. State of
Mississippi ex rel. Knox, 277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857 (1928). The
argument is without merit. In that case Mississippi sued Panhandle Oil Co. to
recover gasoline excise taxes imposed by Chapter 116 of the 1922 Laws of
Mississippi, as amended, a predecessor to the present Miss.Code Ann. 27
5511. The taxes claimed were on account of sales made by Panhandle to the
United States for the use of its Coast Guard Fleet in service in the Gulf of
Mexico, and of its Veterans' Hospital at Gulfport, Miss. The Court, over the
dissents of Justices Holmes, Brandeis, Stone and McReynolds, held that the tax
as applied was invalid as a tax upon the means used by the United States for
governmental purposes. The dissenters' view was that it was not a tax upon
means used by the United States, but that Panhandle merely shifted the
economic burden of the tax to its vendees by adding it to the price of the
gasoline.

16

The Court's Panhandle opinion did not focus upon whether the Mississippi
statute laid the legal incidence of the tax upon the distributor. Rather, the
rationale was that the tax was bad because, if laid upon distributors, the
distributors were able to shift its burden to the purchaser. The Court has since
expressly abandoned that view, and has accepted the analysis of the dissent. In
Alabama v. King & Boozer, 314 U.S., at 9, 62 S.Ct., at 45, the Court held: 'So
far as a different view has prevailed, see Panhandle Oil Co. v. Knox . . ., we
think it no longer tenable.'

IV
17

Finally, petitioner argues that even if the legal incidence of the two taxes is on
him rather than on the consumer, the provision of 276517 denying the
deduction of the taxes in the computation of his 'gross proceeds of . . . retail
sales' is invalid for two reasons.

18

First, he argues: 'Since (petitioner) sells only to the ultimate consumer, the
excise tax attaches simultaneously with the sale and with the sales tax;
therefore, there can be no sales tax upon the excise tax.' Brief for Petitioner 47.
In other words, his argument is that the liability for the excise taxes, state and
federal, and the liability for the sales tax arise simultaneously, and in that
circumstance, one should not be included in computing the other. We read the

opinion of the Mississippi Supreme Court to reject this argument and to hold
that the taxes fall on the 'producer at a time prior to the point of retail sale or
other consumer transaction . . ..' 288 So.2d, at 870. That interpretation of the
Mississippi statutes is, of course, binding on us as respects the state excise tax;
indeed, the interpretation is not merely 'reasonable,' but seems obvious in light
of the express provision of s 275511 that in cases of distributors, like
petitioner, bringing gasoline into Mississippi in their own trucks the tax
'attaches . . . at the time when and at the point where such gasoline is brought
into the state.' Further, we agree with the Mississippi court that the federal tax
also attaches prior to the point of the retail sale. However, even if the liability
for the excise taxes did arise simultaneously with the sales tax, we cannot see
any legal distinction, constitutional or otherwise, arising from that
circumstance. The Illinois Supreme Court also addressed this contention when
made in Martin Oil Service, Inc., supra, at to the federal excise tax, and rejected
it for the following reasons, with which we agree.
19

'The legal incidence of the Federal gasoline tax is on the producer, who is
under no legal duty to pass the burden of the tax on to the customer. If he does
pass on the burden of the tax it is simply done by charging the consumer a
higher price. This higher price is the result of the added cost, because of the
burden of the Federal tax, to the producer in selling his gasoline. It is no
different from other costs he incurs in bringing his product to market, including
the costs of raw material, its processing and its delivery. All these costs are
includable in his 'gross receipts' or the 'consideration' he receives for his
gasoline. No reason has been given . . . why the cost of the gasoline tax should
be regarded differently from the other costs of the producer-retailer and we
perceive none.' 49 Ill.2d, at 268, 273 N.E.2d, at 828.

20

Second, petitioner argues that 'since other independent oil dealers in those
states which do not include the federal excise tax as a part of the sales tax base
would not be forced to pay such tax (e.g., Pennsylvania, see Tax Review Board
v. Esso Standard, supra), then the arbitrary imposition of such tax upon
(petitioner) and those other independent oil dealers in his class (who have to
pay a sales tax on federal excise tax) would deprive (petitioner) of the
Fourteenth Amendment's guarantee to equal protection of the laws.' Brief for
Petitioners 21. The contention is patently frivolous. The prohibition of the
Equal Protection Clause is against denial by the State, here Mississippi, as
between taxpayers subject to its laws. Petitioner makes no claim of
unconstitutional discrimination by Mississippi in the application of its sales tax
Act to taxpayers subject to that tax.

21

Affirmed.

22

Mr. Justice DOUGLAS took no part in the consideration or decision of this

case.

Section 276517 provides in pertinent part:

'Upon every person engaging or continuing within this state in the business of
selling any tangible personal property whatsoever, there is hereby levied,
assessed and shall be collected a tax equal to five per-cent (5%) of the gross
proceeds of the retail sales of the business, except as otherwise provided herein.
. . .'

26 U.S.C. 4082(a), n. 3, infra.

Mississippi Code Ann. 275511 provides:

'Any person in business as a distributor of gasoline . . . shall pay for the
privilege of engaging in such business . . . an excise tax equal to (specified)
cents per gallon on all gasoline . . . sold . . . in this state for sale (or) use on the
highways . . ..
'With respect to distributors . . . who bring . . . into this state gasoline by means
other than through a common carrier, the tax accrues and the tax liability
attaches on the distributor . . . at the time when and at the point where such
gasoline is brought into the state.'
Title 26 U.S.C. 4081(a) provides:
'In general. There is hereby imposed on gasoline sold by the producer or
importer thereof, or by any producer of gasoline, a tax of 4 cents a gallon.'
Title 26 U.S.C. 4082(a) provides in pertinent part:
'(a) Producer. . . . Any person to whom gasoline is sold tax-free under this
subpart shall be considered the producer of such gasoline.'

Section 27653(h) provides in pertinent part:

"Gross proceeds of sales' means the value proceeding or accruing from the full
sale price of tangible personal property . . . without any deduction for . . . taxes
of any kind except those expressly exempt . . ..'

Petitioner sought refunds of $62,782.57, and respondent cross-claimed for

$29,131.19.

Act of June 8, 1966, c. 645, Miss.Gen.Laws 1343, 1347, in effect during some
of the tax years involved, but since repealed, provided only that the excise tax
'may be passed on to the ultimate consumer . . ..' (Emphasis added.) In contrast,
the Massachusetts sales tax law before us in First Agricultural Nat. Bank v. Tax
Comm'n, 392 U.S. 339, 88 S.Ct. 2173, 20 L.Ed.2d 1138 (1968), expressly
provided that the tax "shall be paid by the purchaser," and that the vendor
"shall add to the sales price and shall collect from the purchaser the full amount
of the tax imposed." Id., at 347, 88 S.Ct., at 2178.