Page:United States Reports 546.pdf/330

 546US1

Unit: $U11

[08-22-08 15:19:53] PAGES PGT: OPIN

Cite as: 546 U. S. 95 (2005)

119

Ginsburg, J., dissenting

the tax on the distributor—here, a non-Indian enterprise— not on retailers or their customers; and (2) the distributor’s liability is triggered when it receives fuel from its supplier— a transaction that occurs off reservation. Reply Brief 2–6. Given these circumstances, Kansas urges and the Court ac­ cepts, no balancing is in order. See ante, at 12–13; Brief for Petitioner 6, 14–21. It is irrelevant in the State’s calculus that its approach would effectively nullify the tribal fuel tax. I note ﬁrst that Kansas’ placement of the legal incidence of the fuel tax is not as clear and certain as the State sug­ gests and the Court holds. True, the statute states that “the incidence of this tax is imposed on the distributor of the ﬁrst receipt of the motor fuel.” Kan. Stat. Ann. § 79–3408(c) (2003 Cum. Supp.). But the statute declares initially that the tax “is hereby imposed on the use, sale or delivery of all motor vehicle fuels. . . used, sold or delivered in this state for any purpose whatsoever,” § 79–3408(a), and it authorizes distributors to pass on the tax to retailers, § 79–3409. No­ tably, the statute excludes from taxation several “trans­ actions,” including the “sale or delivery of motor-vehicle fuel. . . for export from the state of Kansas to any other state or territory or to any foreign country”; “sale or delivery. . . to the United States”; “sale or delivery. . . to a contrac­ tor for use in performing work for the United States”; and “sale or delivery. . . to another duly licensed distributor.” § 79–3408(d). Kansas also excludes from taxation “lost or destroyed” fuel, which is never sold by the distributor. § 79–3417 (1997). These provisions indicate not only that the Kansas Legislature anticipated that distributors would shift the tax burden further downstream. They reveal as well where the Court’s analysis of the fuel tax goes awry. When all the exclusions are netted out, the Kansas tax is imposed not on all the distributor’s receipts, but effectively only on fuel actually resold by the distributor to an in-state nonexempt purchaser. To illustrate: Suppose in January a distributor acquires 100,000 gallons of fuel and promptly sells