308
Opinion of the Court
same sales tax now imposed on marketers alone, since the utilities are already subject to a complicated scheme of property taxation quite different from the tax treatment of the marketers.16 It seems, in fact, far more likely that eliminating the tax challenged here would portend, among other things, some reduction of the total taxes levied against LDC's, in order to strengthen their position in trying to compete with marketers in the noncaptive market.
The degree to which these very general suggestions might prove right or wrong, however, is not really significant; the point is simply that all of them are nothing more than suggestions, pointedly couched in terms of assumption or supposition. This is necessarily so, simply because the Court is institutionally unsuited to gather the facts upon which economic predictions can be made, and professionally untrained to make them. See, e. g., Fulton Corp. v. Faulkner, 516 U. S., at 341-342, and authorities cited therein; Hunter, Federalism and State Taxation of Multistate Enterprises, 32 Emory L. J. 89, 108 (1983) ("It is virtually impossible for a court, with its limited resources, to determine with any degree of accuracy the costs to a town, county, or state of a particular industry"); see also Smith, State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203, 1211 (1986) (noting that "[e]ven expert economists" may have difficulty determining "whether the overall economic benefits
16 For example, public utilities pay personal property tax on 88% of true value, Ohio Rev. Code Ann. § 5727.111 (1996), while marketers pay personal property tax on 25% of their true value, § 5711.22(D). Public utilities also pay a special tax assessment for the expenses of the Public Utility Commission, § 4905.10 (1991), and for the expenses of the Ohio Consumer Counsel, § 4911.18. Moreover, natural gas utilities must pay a gross receipts tax of 4.75% on gas sales, § 5727.38 (1996), while marketers pay none. Independent marketers, for their part, are subject to a franchise tax, § 5733.01, that does not apply to utilities, § 5733.09(a). Thus, this sales and use tax challenge would not be the last available to marketers and their customers; the franchise tax, which also does not apply to utilities, is presumably next in line.
Page: Index Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: October 4, 2007