Why They Call Them Tax Regimes

For those who seek to increase sin taxes as a means of funding social engineering, the experience of Tennessee should give pause. The state passed a large increase in cigarette taxes, creating a large disparity between Tennessee and its neighbor states. Since the people in Tennessee can drive elsewhere to pick up their smokes, the state has decided to do border inspections to charge people for engaging in free-market economics — and some may not be able to drive to other states at all as a consequence (via Instapundit):

Starting today, state Department of Revenue agents will begin stopping Tennessee motorists spotted buying large quantities of cigarettes in border states, then charging them with a crime and, in some cases, seizing their cars.
Critics say the new “cigarette surveillance program” amounts to the use of “police state” tactics and wrongfully interferes with interstate commerce. But state Revenue Commissioner Reagan Farr says his department is simply doing its job, enforcing a valid state law while protecting Tennessee retailers who properly pay state taxes.
Agents have already been watching out-of-state stores that sell cigarettes near the Tennessee border to “get a feel where problem areas are,” Farr said.
While declining to be specific, the commissioner said “problem areas” are generally along interstate highways with exits near the Tennessee border.

I can’t wait for the first legal challenge to this enforcement. As far as I can see, it violates federal sovereignty in interstate commerce, the 4th amendment, and the spirit of the entire Constitution. Let’s try to tackle this one issue at a time.
First, Tennessee has no jurisdiction over what stores in other states sell, even if the material was illegal, which tobacco is not. They can’t conduct surveillance in Missouri, for instance. The fact that they are “watching out-of-state stores that sell cigarettes” should be enough to demand some resignations, starting with the commissioner himself.
Second, people do have the right to cross state lines to purchase legal commodities. If Tennessee wants to hike its cigarette taxes far beyond its neighbors, then it’s the state’s fault that its shop owners can’t compete. It’s not the fault of the consumer who makes a smart choice to cross the border and buy in bulk. Unless the product itself is illegal, the state of Tennessee has no right to interfere in that transaction.
What trips the wires of Tennessee’s enforcement? As few as three cartons, according to the commissioner and Tennessee state law, which makes that a misdemeanor. Twenty-five cartons will result in auto forfeiture, between one and six years in prison for a felony conviction, and a $3,000 fine. None of this has to be predicated on an explicit act to bootleg the cigarettes, either, but merely possession of a legal product.
Tennessee wants to set itself up as a police state while, as one Republican state legislator notes, it does nothing about illegal aliens transiting the state. It demonstrates what happens when the effort to squeeze tax dollars from citizens runs out of control. The notion that an American cannot cross a state border without risking arrest for purchasing a completely legal product for his own use should be anathema to everyone across the political spectrum.

52 thoughts on “Why They Call Them Tax Regimes”

  1. That reminds me – my husband drives to a neighboring state every week to buy something that’s illegal to sell in my home state, but legal in that state.
    There are not a huge number of items for which this is the case, but given I live in NY, it’s not that surprising. Consider the items illegal to sell in NYC, that are perfectly legal if you go to Westchester County or Long Island (such as spray paint, box cutters, other items – if you’re under a certain age.) I don’t know the tobacco laws right now, but it used to be in some states you only needed to be 16 to buy cigarettes, and in others the age would be 18. So people could go to a less restrictive state to buy certain things, and no one would think it legit for the more restrictive state to try to impose its selling regs on other jurisdictions.
    Anyway, TN has got to know that it will lose this case. I suppose the bad PR and whatever pro forma slap-on-the-wrist they’ll get is not enough of a disincentive.

  2. California already does this regarding Nevada fireworks. In fact, Vegas retailers let CA deputies watch and phone home when a car with CA plates loads up on fireworks and rolls southbound on the I15. $3000 fine. I know from a defendant.

  3. When I lived in Pennsylvania, the dreaded Liquor Control Board would regularly stake out liquor stores in N.J. to catch Penna. state residents bringing cheaper (i.e., non-union) booze back and would fine them. I’m not sure if that’s still the going practice, but given the union’s stranglehold on Pennsylvania legislators, I would imagine it is.

  4. Captain Ed, even in your home state of MN, this is an illegal activity. The problem isn’t going across the border to purchase the item … it is the act of bringing it back across the border without paying the taxes that is the issue. I do know that MN also is sending tax bills to people who order tobacco (Cigars, pipe tobacco, etc) over the internet when they can find the proof that they ordered it.

  5. The state of Massachusetts did this a while ago to my state of NH, but relating to the state liquor stores. Mass state troopers were sitting NH parking lots and writing down plate numbers of Ma cars. It ended when the Gov of NH sent NH state troopers down to arrest the Ma state troopers. 🙂 The quantities involved were personal consumption levels, 1 or 2 bottles, a few cases of beer.

  6. I agree with peregrin. The issue is the collection of the tax. When one purchases an item from out of state, one is required to pay the taxes as if one purchased within the state. Many internet purchases are not assessed a sales tax, yet most state laws would require the purchaser to submit a use tax form and pay the (sales) tax as if purchased within the state. Obviously this is a law with which few comply. It is enforced with vehicles since the purchaser needs to register and license the vehicle in state and exacting compliance is fairly simple. Conducting surveillance across state lines is a bit creepy though and possibly illegal.

  7. I would suppose that if Tennessee were to ban cigarettes completely this surveil and pinch operation would stand better in Court. But, cigarettes are still a legal product in Tennessee, and the state still derives income from this legal product. Thus, this is far more than trying to keep Tennesseans from buying cigarettes in other states. Prohibiting the import of banned items is one thing. Using taxpayer monies to bolster Tennessee’s cigarette merchants is something entirely different.
    Seizure of private property in pursuit of bolstering Tennessee’s cigarettte merchants (and the tax income of Tennessee) is something that needs to be challenged in the Courts.

  8. Tennessee’s Cigarette Surveillance Program (CSP)

    Are we seeing a Nanny State go off into a slippery state of POLICE state here? I think so.
    NASHVILLE — Starting today, state Department of Revenue agents will begin stopping Tennessee motorists spotted buying large quantities of cigarettes in border …

  9. My home state of Maine does this with regard to fireworks sold legally in NH and transported to Maine, where they are illegal. The distinction is that cigarettes are still legal in Tennessee. Tennesseeans should not have to pay taxes on cigarettes purchased outside the state.

  10. If the sole issue is collection of the tax, shouldn’t everyone that buys gas in one state (say because they work there), but then consume all or part of that in their home state be paying tax on it? Each state has their own taxes on a gallon of gas. What food or clothing purchased elsewhere? On the gallon of gasoline, what if the state you purchased the gas in has higher tax than your home state, shouldn’t you be able to claim a tax credit on your state income tax for the delta between the two? To my knowledge Internet and mail order purchases have always been subject to a state sales tax if the “store” has a physical presence in your state.

  11. Tennesseeans should not have to pay taxes on cigarettes purchased outside the state.
    Ironically, they are though. Just taxes from another state.
    I drive cross country a lot and I happen to know that gasoline is often cheaper in a state that I am about to leave than in the one I am about to enter. Many times by a considerable amount. So, like most people, I buy the gas near the border of the cheaper state.
    How long before this is considered illegal?

  12. Tennessee State Government: Crazy Intrusion into Private Lives

    The state government of Tennessee raised cigarette taxes some time ago, so natch many smokers in Tennessee drove to other states to buy cigarettes and save some money. Now the Tennessee government is going to check people at the border to see if they b…

  13. This is the kind of tripe that happens when a state government becomes an equal co-conspirator with the tobacco companies to sell products that kill.
    For a humorous look at this, try “Thank You for Smoking” and be prepared to laugh. Don’t miss the part where the father explains the difference between an “argument” and a …

  14. Constitution, Section 9[5] No Tax or Duty shall be laid on Articles exported from any State.
    [6] No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
    Seems to me that Tennessee is violating Section 9[6].
    Fireworks are a bad example. While legal in one state, they are illegal in another, which is different from this case as the cigarettes are legal in both states.
    Onerous taxation was one of the causes of the Revolutonary War. The Declaration of Independance and the Constitution were born out of the frustrations of over-taxation, over-regulation, and under-representation. Our current tax laws and size of government makes our founders spin in their graves.

  15. “To my knowledge Internet and mail order purchases have always been subject to a state sales tax if the “store” has a physical presence in your state.”
    Even if the seller does not have physical presence in the buyer’s state, I think every state that uses sales tax, also imposes a use tax on out of state purchases. Businesses get audited all the time by the state to see if they have filed and paid the appropriate use taxes on their purchases from interstate and internet vendors.
    Legally, if you live in such a state, you are required by law to file at least annually with your state, a return showing all purchases that you were not charged sales tax upon and calculating and paying the appropriate tax. The state typically does not go after individuals due to the fact that most individuals don’t keep the records necessary to audit it, and the individual take (or tax) from a taxpayer is not sufficient to justify the states expense in auditing the individual.
    My last visit to Montana, I saw billboards exhorting people to pay their cigarette taxes on purchases made outside the state. Montana doesn’t have sales tax, so this was just for collection of their recently jacked-up tobacco taxes.
    Lot’s of Wisconsin residents on the west side of the state buy gasoline in Minnesota, since the tax is less (for now), resulting in a lower price.

  16. This is perfectly legal. It has already survived court challenges in other states. The issue is not buying items in another state, it is importing items with out the proper tax stamps. My state, Ohio, used to do this in Northern Kentucky until KY threatened to arrest Ohio’s investigators. Even today, it is still a felony to import more than one liter of alcohol or more than one carton of cigarettes per month without Ohio tax stamps.

  17. Neo say:
    “This is the kind of tripe that happens when a state government becomes an equal co-conspirator with the tobacco companies to sell products that kill.
    For a humorous look at this, try “Thank You for Smoking” and be prepared to laugh. Don’t miss the part where the father explains the difference between an “argument” and a …”
    Have to disagree on point. This isn’t really about the state trying to prop up the tobacco companies. This is about the state trying to preserve tax revenues. The state does have some vested interest in cigarette sales, though its primary interest lies with the fact that cigarettes are a highly-taxed consumer good, and thus provide significant state revenue. Tennessee could impose similarly onerous taxes on other goods, and the point would remain the same.
    And “Thank You for Smoking”? That was a great movie.

  18. Washington DC used to have very low taxes on liquor. And being a tourist haven, sold a lot of liquor to out of staters. Pennsylvanians in particular would make the 2 and a half hour drive for themselves and their friends.
    Eventually Pennsylvania police stationed themselves outside of Central Liquor (the largest retailer) and reported the license numbers of Penna. customers. They didn’t need to follow them, other state cops just stationed themselves outside the perp’s house and waited. Seized the liquor and the car too.
    It all came to an end when Washington got home rule. Oblivious to market economics, the new government tripled the liquor taxes. Two years later liquor tax receipts were less than before.

  19. When will the left wing nanny state turn its sights on alcohol?
    You know it’s coming. Once the busybodies squeeze the last drop out of their smoking crusade, they will start slapping onerous taxes upon our beer, wine and liquor.
    Time to start investing in home brewery equipment and stills. Pretty tough to grow tobacco, but it’s not all that hard to brew your own.

  20. JohnO,
    Pa still enforces that liquor tax not only with NJ but also with Del.
    It’s legal. Sometimes people have also been charged with (don’t quote me) intent to resell, ie: they bought too much for personal consumption and plan to resell and avoid taxes. Much higher penalty.

  21. What about ammo? It’s exactly like cigarettes, regulated by the same Federal agency, you have to be an adult to buy both and both have consumption levels that vary from individual to individual. Hasn’t bulk warehousing made purchasing products in large volumes the norm? Why not cigs and ammo?

  22. not sure of the legal grounds but when I was living in NJ the revenooers from NY would go to IKEA in Elizabeth NJ to record NYS license plates. Eiizabeth was a NJ Enterprise zone and goods there were subject to only a 3% sales tax as opposed to 8% in NYC & Westchester. once discovered the NY agents were escorted back to the NYS border by the NJ State Police.

  23. Years ago I ran a mail order/ internet firm and can tell you.
    We were not required to collect taxes for out of state shipments. Nor could any state force us to collect taxes from their residents to do so would have violated interstate commerce clauses. We were located in Nev. as such it was the only state we collected a sales tax for.
    A physical presence is the litmus for required tax collection for products sold only within that state.
    California residents loved buying their computer products from us.
    Of course we always informed the residents of other states they were required to file a use tax with their respective states… And I’m sure they all did.

  24. What is the difference between buying cigarettes in a state that is not your state of residence, and crossing that same state line for dinner? Should you be penalized for not buying your dinner in your home state?
    Under the logic of various postings above citing the surveillance and confiscation as legal, does not the law also provide grounds for criminalizing out-of-state dinners?
    Does the state of TN also provide tax rebates to tourists who pay sales tax on a Big Mac? (TN has no income tax, but uses higher sales taxes).

  25. Ed, you are correctly outraged, although the courts will support Tennessee.
    Now, would you perhaps consider taking a lok at the “war on drugs”, which is much more pernicious, and underlies the starting growth of “federal” crimes and startling interference in state prerogatives, as well as being completely counterproductive?
    Cato and Radley Balko at Reason have ready resources.

  26. they bought too much for personal consumption and plan to resell and avoid taxes. Much higher penalty.
    This is “boot-legging”, of which one element is the intent to avoid a tax.
    I grew up in a border town (literally bisected by a state line – Bristol, TN/VA). Under the TN law, buying a pack of smokes on the VA side of State Street then making a left turn (crossing into TN) is a crime. Put that in your pipe and smoke it.
    There was a funny saying in Bristol: “If you rob a bank on State Street, make sure you turn right when you leave, that way the FBI won’t have jurisdiction”. Weird.

  27. As a Tennessean, I can speak to this. The tax increase was devised for “the children.” The new vig that smokers pay goes to fund some new government education scheme. Remember, though, that in most cases, these are the same people who tried to bankrupt the state with TennCare so a former governor could make his bones with a former Vice-President. We are by and large a red state, but for some reason we keep electing nanny-state liberals or RINOs to the governors office.
    There are even those black-helicopter types who see this as a way to bring about a state income tax, since they didn’t get it some years ago. (Smokers quit or bootleg = lower tax rake = “We need the money, it’s for the childrennnn…”

  28. So what about all the “duty free shops” in almost every major airport? Are they now to be considered smuggler’s dens? Will there be cameras and undercover troopers stationed there to nab tax-evading citizens? Will there be enough floor space to accommodate all the troopers? Can the states agree on using “trooper pools” to avoid the embarrassment of arresting one another?
    Nonsense. This will indeed be struck down. And whether it is or isn’t, people will always seek out the lowest cost provider.
    Unless of course, the Democrats take over in ’08 and the State becomes the only provider.

  29. Alaska gets away with demanding credit card sales records from out of state, ship cigarettes by mail, vendors and charging citizens of tax evasion based on same.
    We Americans accept any government curtailment of rights and freedoms, -as long as it’s to protect the children! Every time I, at age 68, go in to a store to buy beer or cigarettes and have to rattle off my date of birth to satisfy the state mandated requirements, I sadly remember this.

  30. A few commenters have noted that many (all?) states have a ‘use tax’ which requires you to remit your state’s equivalent sales tax on items purchased out of state. As an individual, you’re required to do that on your state income tax form.
    (The use tax applies to Internet purchases as well. The Quill decision doesn’t prohibit states from trying to collect it; it prohibits states from demanding that out-of-state merchants without a ‘nexus’ collect and remit sales tax to them.)
    But I don’t know of any state that requires the payment of the use tax as you re-enter your home state.
    I don’t think this will survive a court challenge — but it might depend on whether Tennessee’s judges are elected, or appointed.

  31. SouthernRoots:

    [6] No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

    Ports? Vessels? This pretty clearly applies only to ships. Try to force that into an automobile paradigm and you run the risk of looking like a loony left liberal…

  32. Tennessee Cigarette Police State

    Tennessee revenuers are waiting at the borders to arrest people with cigarettes.
    Starting [Thursday], state Department of Revenue agents will begin stopping Tennessee motorists spotted buying large quantities of cigarettes in border states, then chargi…

  33. That is what I was thinking Paul in NJ.
    Wouldn’t the state have to wait 3 years and then check to see if you filed before they could say if a crime has been committed or not.

  34. It’s a geographic nightmare and yes, it is illegal but as others have pointed try getting a judge to rule on it properly.
    Also, as Joseph Eversole stated: Who defines personal consumption?
    I blogged about this, too.

  35. You’re correct in principle Cap’n… but we lost this fight a long time ago. It’s getting rather common for one state to make absurd attempts like this to collect taxes of various types… from goods bought in other states. Tobacco is one of the popular ones.
    Sometimes they’ll go to the effort to actaully rewrite a law to say that as the purchaser, you’re required to ensure you pay the tax when you “import” the goods. Sometimes, they just do it… and so far most of the stories I can remember reading out it usually end in the state getting away with it.
    I wonder from time to time how bad these kinds of tax schemes will get before we finally, as a population, get ticked off enough to actually do something about it. Unfortunately politicians in both parties are prone to this sort of stupidity, so we can’t even depend on our “R’s” to bail us out of it. They’re as addicted (in general) to the revenue as the others. But they have to come up with schemes to increase use fees and such so they can tell us later that “I reduced taxes!!” when in reality they really didn’t. It’s all too common.
    I’m sorta surprised California hasn’t thought of doing this with gasoline really. Last time I drove into California from Vegas right at the border was a literal disneyland of gas stations… for the obvious reason. Last chance for cheaper gas till you hit the ocean… or… first chance to not have to sell your left arm for a full tank of fuel to pay for the over regulation and excessive California taxes.

  36. Back in my “old” truck driving days in the South, you had to purchase a certain amount of fuel in each state or pay a fine. If you got stopped it wasn’t for being overweight or anything else, they wanted to see the fuel receipt.
    Tom

  37. Ladies and Gents, after years of hearing about “spying on americans” we have finally found an example! Spying to prevent terroism is WRONG! but spying to collect taxes is a-ok!
    The gasoline example has already be brought up and it is a good one. Here in my town, an Indian Reservation cuts right thru the middle, where they have a smoke shop that does not charge state sales tax. Many large metro areas include several seperate cities. If this can be enforced across state lines, what about city lines and reservations. The city (or state) next to mine has a lower sales tax which is charged on EVERYTHING, so this line of thinking could be applied not just to smokes but candy bars too.
    Lawyer question: If I enter my car with a shopping bag containing merchandise that cops cannot see, what probable cause do they have to search my car? Is an assumption that I “might” have purchaced cigs a legal reason to pull me over and search my vehicle if I refuse permission to search. Evidence obtained by illegal search. Case dismissed. Am I wrong? (funny to think of the entire K-9 corp being retrained to sniff cars for tobacco)

  38. Yet this is nothing new. I distinctly remember college students driving across the NY border into Vermont to buy alcohol at much cheaper prices because of the NY sin tax. And you did have to sneak back in because you would be arrested if you were found with the “contraband”. This was 40 years ago. Nothing has changed except the product and possibly the size of the penalty.
    This comment is not to be construed as in any way as an endorsement of either law, nor in fact of any infringement involving the regulation of alcohol, tobacco and firearms.

  39. I think the issue boils down to the following. If the State of Tennessee disallows the import of purchased “foreign” cigarettes even if one pays the applicable Tennessee sin tax, that action will not likely pass constitutional muster since that action would seem to violate interstate commerce. If importation is not prohibited if the tax is paid, that’ll likely pass muster based on existing law and precedent.

  40. How about they just start ‘competing’ with their neighboring states, and make the tax the same or lower. Let the people in the other states help keep the pig trough filled in Tennessee.
    Imagine coming back from a nice supper in a bordering state, entering your home state you are pulled over by the state troopers-
    Trooper: ‘Sir, did you eat at the Super American Family All-You-Can-Eat Restaurant tonight?’
    Tennessean: ‘Yes, Sir’
    Trooper: ‘Did you have the all-you-can-eat buffet?’
    Tennessean: ‘Yes, Sir’
    Trooper: ‘Do you still have that meal with you?’
    Tennessean: ‘Yes, Sir, its only been an hour’
    Trooper: ‘Trying to avoid Tennessee state taxes on that meal, Sir?’
    Tennessean: ‘No, Sir’
    Trooper: ‘It looks like like you were eating more than enough for one person, are you trying to import food to Tennessee?’
    Tennessean: ‘No, Sir, I have a high metabolism’
    Trooper: ‘What did you call me?’
    Tennessean: ‘Nothing, Sir’
    etc.

  41. Liquor taxes are a separate animal. The Constitution, in the 21st Amemdment the one that repealed Prohibition) specifically grants the states the rights to control and tax alcohol in direct contravention of the Commerce clause.
    To do this to tobacco, OTOH, requires a large degree of legal sophistry, which is certainly not in short supply among government lawyers.

  42. Two comments – several states have gone draconian in trying to collect taxes. Most sales tax statutes also include a use tax at the same rate. This is so someone buying something out of state and not paying the sales tax is still liable for the use tax – even if they paid a sales tax elsewhere. California has been known to subpoena the records of mail order houses in other states to get the names of Californians and records of what they bought. Then they send the person a bill for the tax. New York and others recently have been going after people who come to the state for business and going after them for state income tax.
    Second comment – when I was younger and Coors beer was not sold east of the Mississippi (we lived in Colorado) we financed a trip to a Corvette club convention is Indy by loading 50 cases of Coors (which we bought at employees discount thru another friend) at I think around $2.50 a case (Ah! The good old days) and then sold them to easterners we knew for $10 a case. Now the tax man would have loved to catch us doing that but he didn’t. And we had a great time.

  43. WA residents used to register their cars in OR (I assume using a PO box) back when WA’s registration fees were based on a % of the vehicle’s value. That has largely stopped since WA voters passed an initiative for $30 tabs.
    And CA cops also stake out gun shows in Vegas and Reno, watching for proles from the People’s Bearflag Republic buying guns.
    I believe MD also has a “no more than two cartons” law. Not sure if they stake out cigarette sellers in neighboring states.

  44. Here is a thought for TN smokers.
    IF the TN government feels this need to “help you” pay your cigarette taxes BUT does not have the resources to go after illegal immigrants, then I suggest the following….pay an illegal to go buy the cigarette cartons for you. That way either one of two things happen; A you get your cigarettes in bulk, or B the government will finally do something about illegal immigrants.

  45. I live in a small town in GA just south of Chattanooga, TN. For years the gas was cheaper in GA because of the difference in state tax on gas. So for years people in Chattanooga would drive in to GA to buy their gas. Never heard of the officials in TN stopping those people after filling up in GA. Interesting.

  46. I don’t believe the tank of gas analogy is valid in this case. According to other reports on this story, anything over two cartons is considered a misdemeanor — but if you simply buy two cartons, no problem. For the gas analogy to be comparable in this case, you would need to be talking about buying several tanks of gas at one time and bringing it across the border. Somehow I think that would be considered a problem.

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