Telecommunication Tax for Using Public Highway
A statute is to be read and applied in accordance with any special statutory definitions of the terms that it uses. Tobel v. State, 189 Ariz. 168, 174, 939 P.2d 801, 807 (App. 1997).
If a statute's meaning is manifestly unambiguous when all its language is considered as a whole, that meaning is conclusive. Mail Boxes, 181 Ariz. at 121, 888 P.2d at 779.
When statutory language is clear, unequivocal, and unambiguous, this court must give effect to the language and may not invoke the rules of statutory construction to interpret it. E.g., Paging Network of Ariz., Inc. v. Ariz. Dep't of Revenue, 193 Ariz. 96, 97, P8, 970 P.2d 450, 451 (App. 1998).
The tax court's determination that the 1.5% tax imposed by Tucson Code section 19-1070(a)(2) was not a "transaction privilege tax" of the kind permitted by section 9-582(A)(1) might appear plausible if the term "telecommunications services" as used in that statute carried its ordinary meaning.
Let us assume, for example, that "telecommunications services" within A.R.S. section 9-582 included all transmission or relaying of sound, visual images, data, information, or material over any communications channel. See Tucson Code 19-700.
In that situation a political subdivision's decision to tax only revenues from such "telecommunications services" as were accomplished using public rights-of-way might reasonably appear to be focused deliberately on extracting compensation for such use and therefore arguably not qualify as a transaction privilege tax on the business of providing "telecommunications services" within A. R.S. section 9-582(A)(1).
"Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received. the term does not include commercial mobile radio services, pay phone services, interstate services or cable services.
The first sentence of this definition effectively states the commonly understood meaning of "telecommunications." the second sentence, however, drastically constricts the meaning of that term as used in A.R.S. sections 9-581 to -583.
The significance of this restricted statutory definition becomes apparent when the exception in A.R.S. section 9-582(A)(1) is restated in light of it.
Taking due account of A.R.S. section 9-581(4) and (6), section 9-582(A)(1) expressly permits political subdivisions to impose transaction privilege taxes on the business of transmitting (by means other than commercial mobile radio, pay telephone, or cable facilities) information of the user's choosing between or among points in Arizona specified by the user without change in form or content.
Thus understood, subsection (A)(1) effectively empowers political subdivisions to impose transaction privilege taxes on the business of providing traditional local telephone service via above- or below-ground facilities installed on public rights-of-way.
Subsection (a)(2) of Tucson Code section 19-1070 increases the tax rate for the telecommunication services public utility tax to a total of 3.5% for gross income earned by any telecommunication services provider "who uses any city rights-of-way."
This in effect creates a separate, additional transaction privilege tax on the business of providing "telecommunications services" as that term is defined in A.R.S. section 9-581(4) and (6) and applied in A.R.S. section 9-582(A)(1).
As we have held, those statutes expressly authorize political subdivisions to impose transaction privilege taxes on the business of transmitting information by means other than commercial mobile radio, pay telephone, or cable facilities - in other words, through the use of public utility easements and rights-of-way. Tucson Code section 19-1070(a)(2) taxes that very business.
Moreover, "double taxation occurs only 'when the same property or person is taxed twice for the same purpose for the same taxing period by the same taxing authority.'" Miami Copper Co. v. State Tax Comm'n, 121 Ariz. 150, 154, 589 P.2d 24, 28 (App. 1978) (quoting Milwaukee Motor Transp. Co. v. Comm'r of Tax, 292 Minn. 66, 193 N.W.2d 605, 612 (Minn. 1971)).
The proposition that Tucson Code subsections 19-1070(a)(1) and (2) impose double taxation is at best doubtful.
Based on everyday experience and the shared popular history of our culture in this century, ordinary citizens and their representatives may well believe that the physical infrastructures that underpin the business of providing traditional local telephone services are more obtrusive, extensive, or unsightly than those of other businesses and activities that use public rights-of-way in urban areas.
In enacting A.R.S. section 9-582 and Tucson Code section 19-1070(a)(2), respectively, the Arizona Legislature and the Tucson City Council could rationally have concluded that providers of traditional local telephone services would tend to use public rights-of-way more frequently, intensely, and disruptively than any other right-of-way users, including cable companies that provide telecommunications services over their own cable systems.
The rational basis test requires no more than this. Our supreme court has stated:
In imposing excise taxes the legislature may select certain classes of privileges, businesses, or occupations and leave others untaxed. As is said by Cooley in his work on Taxation, fourth edition, volume IV, section 1685:
"All occupations need not be taxed. One or more may be taxed and others not taxed. the sovereignty may, in the discretion of its legislature, levy a tax on every species of property within its jurisdiction, or, on the other hand, it may select any particular species of property, and tax that only, if in the opinion of the legislature that course will be wiser.
And what is true of property is true of privileges and occupations also; the state may tax all, or it may select for taxation certain classes and leave the others untaxed." Stults Eagle Drug Co. v. Luke, 48 Ariz. 467, 476, 62 P.2d 1126, 1130 (1936).