Petitioners have filed a Motion for preliminary injunction pending original tax appeal. The respondent has filed a motion to dismiss alleging that the Court is without jurisdiction; that the petitioners have not followed statutory procedures; that the petitioners have filed this action prematurely; and that the petitioners have failed to state a claim. Hearing on both motions was held on August 3, 1987, and the Court took each motion under advisement.
The parties have entered into a stipulation which has been filed and which, omitting caption and formal parts, reads as follows:
1. This Stipulation applies between, on the one hand, Petitioners and all interstate carriers whose commercial motor vehicles travel in and through Indiana and who are, thus, subject to and affected by the annual Supplemental Highway User Fee of $50.00 as required by Ind. Code § 6-6-8-1 et seq. ("Decal Tax") and have paid since 1985 and will pay to Respondents the Decal Tax (the "Class") and, on the other hand, Respondents.
2. If the Court does not certify the Class as defined herein, this Stipulation shall then apply to Petitioners and, if a class different than that defined herein is certified, then also to such certified class.
3. For the purpose of this Stipulation, "Protest Amounts" shall mean the Decal Tax payments made by Petitioners or any member of the Class.
4. From and after June 25, 1987, the Protest Amounts paid by Petitioners and any member of the Class shall be conclusively deemed to have been paid under protest and involuntarily. Respondents waive any defense or contention they may have (a) that the Protest Amounts paid after June 25, 1987, were paid voluntarily and (b) that such Protests Amounts would not be recoverable by Petitioners and the Class if they prevail on the merits of their claim.
5. Except as to the Protest Amounts paid from and after June 25, 1987, Respondents reserve all rights and defenses they may have as to (a) the claims of Petitioners and the members of the Class including, but not limited to, that all Protest Amounts paid before June 25, 1987, were voluntary or were not paid under protest and (b) any argument that refunds should only be prospective from June 25, 1987, if the Court rules that the Decal Tax is unconstitutional.
6. Petitioners reserve all rights to pursue retrospective refunds of all Protest Amounts paid by Petitioners and members of the Class before June 25, 1987.
7. If Petitioners or any member of the Class prevail on the merits and are entitled to a refund, Respondent will pay such refunds and interest on such amounts according to Ind. Code § 6-8.1-9-1 and Ind. Code § 6-8.1-9-2(c) or as ordered by the Court, provided, however, that nothing contained in this paragraph 7 shall be construed to waive any argument or defense identified in paragraph 5.
8. Respondents reserve the right to challenge class certification and definition, and nothing in this Stipulation shall be construed to be a stipulation as to class.
9. Because Petitioners' claims for refund have been denied, Respondents shall withdraw their Motion to Dismiss.
10. Petitioners shall file an amended petition for original tax appeal, omitting therefrom any claim for declaratory relief and any claim for relief under 42 U.S.C. § 1983.
11. Petitioners and Respondents agree to dismiss, without prejudice, the action pending in the Marion County Superior Court, Room 4 ("Superior Court Cause"), provided, however, Petitioners reserve the right to seek reinstatement of the Superior Court Cause, if necessary, at a later date. Petitioners and Respondents further agree to file an agreed entry to such effect in the Superior Court Cause for court approval.
The Court notes that respondent concedes the jurisdiction of this Court. While parties to litigation may not by agreement confer jurisdiction not otherwise conferred by law, State ex rel Wilson v. Howard Circuit Court (1957), 237 Ind. 263, 145 N.E.2d 4, the Court finds that the objections of respondents to the Court's jurisdiction have been resolved and the Court further finds that it has jurisdiction to issue the injunction inasmuch as petitioner has complied with requirements of IC 33-3-5-11(b).[Footnote 1]
The petition brought by petitioners seeks to enjoin the respondent from collecting the Supplemental Highway User Fee (SHUF) imposed by IC 6-6-8-1 et seq.. SHUF is a flat tax of $50 for each motor vehicle meeting the statutory specifications operating in the State of Indiana. SHUF applies equally to all such vehicles whether engaged in interstate commerce or intrastate commerce. SHUF is due April 1st of each year and generates annual revenues of approximately $27 million. Respondent anticipates that $2 to $3 million will be collected from August 3, 1987 to March 31, 1988. SHUF is a "listed tax". IC 6-6-8-6(c). Other facts will be stated below.
The issue petitioners aver will be raised in the original tax appeal is whether the SHUF is in violation of the commerce clause, U.S. CONST. art I, § 8, cl. 3.[Footnote 2] Since this issue affects both the validity of an act of the Indiana General Assembly and whether $27 million dollars of revenue annually may be assessed and collected, the Court finds that the issues to be raised are substantial.
While the arguments both for and against the constitutionality of the SHUF are not without merit, the Supreme Court of the United States has addressed the matter of a flat tax, similar to SHUF in the case of American Trucking Associations, Inc. v. Scheiner, U.S. , 107 S. Ct. 2829 (1987). While the parties have not briefed specifically the application of the Scheiner case to the SHUF, a reading of Scheiner strongly suggests to the Court and the Court finds that petitioners have a reasonable opportunity to prevail in the original tax appeal.
A much closer question is presented as to the equitable considerations involved in enjoining collection of the tax and the state's interest in collecting the tax pendente lite. The question narrows itself to the likelihood of a refund if petitioners are successful as ...