The commercial activities tax was created in 2005 as a quarter of a percent tax on the gross receipts of all Ohio businesses, and the money it brings in go to the general revenue fund, schools and local governments. Three years ago, the Ohio Supreme Court ruled that the tax can be levied on grocers, though the Ohio constitution prohibits sales taxes on food.  In this case, the court will decide if the CAT can be assessed on motor fuel. Anthony Ehler argued for Beaver Excavating Company, which filed a suit that was joined by truckers, builders and contractors. Ehler noted that in 1947, voters approved a constitutional amendment requiring taxes on motor vehicle owners and operators – including license and tags fees and gasoline – to go to transportation. So Ehler said because CAT revenues don’t go exclusively to roads, lawmakers couldn’t decide to assess the CAT on gasoline sales.

“Only as the tax applies to sales of motor vehicle fuel. All the rest of the CAT is fine. This is an as-applied challenge. So as applied to the privilege of selling motor vehicle fuel, those funds need to be dedicated. It’s either that or they could exempt them and increase the motor fuel tax. That’s their prerogative.”

But Ehler told Justice Terrence O’Donnell that while depending on the ruling some taxpayers could be entitled to refunds, he said that’s not why his side filed this lawsuit.

“We brought the case to make sure that the monies raised were devoted to roads."

O’Donnell: "That’s precisely the issue I want to ask you about. The levy of the CAT isn’t unconstitutional, is it?"

"Absolutely the levy of CAT is unconstitutional."

"I thought it was the expenditure of money –"

"Not at all."

"Other than highway.”

Ehler said because the way the CAT revenues are spent is unconstitutional, then so is the assessment of the tax.  Stephen Carney argued for the state tax commissioner, and cited the conclusion the court handed down in its 2009 ruling against the grocers.

“The CAT is on the privilege of doing business – as the court said in Grocers. It’s measured by all your gross receipts, regardless of whether they’re food, widgets, motor fuel, toilet paper – doesn’t matter what you sell.”

And Carney said if the law isn’t read this way, then anyone who does any business involving gasoline could claim they are exempt from the CAT and other taxes as well.

“A taxpayer could say, my employment is driving a truck of gas around, so therefore my employment tax relates to gas. Or I sell cars, so that relates to operating using – their test could literally break down the entire CAT and the entire sales tax system, whereas our way is very straightforward. If you talk about gas or operating cars, you’re triggered.”

The decision could only affect the $140 million a year that comes into the state from the CAT on gasoline sales – and not the $.28 gasoline tax, which last year brought in nearly $1.8 billion to the Ohio Department of Transportation and local agencies for road construction and repair. The high court also heard arguments on whether revenues from a fee increase levied by the Bureau of Motor Vehicles is unconstitutional, since that money also went to purposes not related to roads.