Arizona Department of Revenue v. M. Greenberg Construction

TOCI, Judge This is an appeal by the Arizona Department of Revenue (""the Department"") from a tax court judgment in favor of taxpayer, M. Greenberg Corporation (""Greenberg""). The tax court held that federal law preempted the Department's assessment of state prime contracting privilege taxes1 on Greenberg's gross receipts from contracts for construction work it performed on the Navajo Reservation for Chinle Unified School District No. 24 (""the Chinle District"") and Ganado Unified School District No. 20 (""the Ganado District"") (collectively, ""both Districts""). In this case, we address two issues. First, does federal law preempt state transaction privilege taxes imposed on an Arizona corporation's gross receipts from construction contracts with a state school district on the Indian reservation? Second, after acquiescing in the corporation's exclusion of similar receipts from its taxable business income in previous taxable years, is the state now precluded from assessing taxes on such gross receipts? We conclude that the tax court erred. We hold that state taxation of non-Indian activity on an Indian reservation is proper if the tax does not frustrate tribal self-government or contravene a comprehensive and pervasive scheme of federal regulations. This tax does neither. Consequently, we reverse.