United States District Court, Northern District of Illinois, E.D
April 21, 1983
NORTHERN ILLINOIS GAS COMPANY, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Bua, District Judge.
Before the Court is the plaintiff's Motion For Reconsideration
and Amendment of this Court's January 13, 1983 judgment. Also
before the Court is the defendant's Motion to Alter or Amend the
judgment. For the reasons stated herein, plaintiff's Motion to
Reconsider is denied and the January 13, 1983 judgment is amended
554 F. Supp. 371 as stated in this Order.
A. Plaintiff, in support of its Motion to Reconsider argues
that the recently enacted Highway Revenue Act of 1982 (the Act),
effective July 1, 1984, inherently rejects the position taken by
this Court in its January 13, 1983 judgment. It contends that the
specific clauses adopting the position of the Court were included
to represent a change in prior law.*fn1 The Court does not concur in
this reading of the statute.
As noted by defendant, in explaining the provisions of the Act,
Congress stated that it modifies current law by (1) raising the
highest taxable gross weight of a vehicle not subject to tax from
26,000 pounds to 33,000 pounds, (2) changing the rate of tax from
a flat amount per 1,000 pounds to a graduated amount, (3)
exempting from the tax a vehicle that is used on the public
highways less than 2,500 miles during a taxable period and (4)
terminating the tax as of October 1, 1988. H.Rep. No. 97-945,
97th Cong., 2d Sess. at pp. 17-18. Congress made no statement to
the effect that the provision classifying vehicles according to
the manner in which they are equipped represents a change in the
law. What Congress did say is that "the bill makes it clear" that
the vehicles shall be classified in such a manner. Id. The
meaning of "customary use" is specifically not among the
modifications enacted; instead, it is the opinion of the Court
that by specifically including the section of the Act relating to
customary use, Congress merely sought to clarify what was an
ambiguity which had formed the basis of this and other
Plaintiff, in support of its argument, cites the Internal
Revenue Service General Counsel's Memorandum (GCM) issued
February 16, 1983 which summarizes the position of the General
Counsel contained in prior GCMs as requiring that a factual
determination must be made before a determination of customary
use can be issued. Plaintiff's reliance on the GCM is misplaced
in two regards. First, a GCM is merely an internal memorandum not
accorded the force of law. Additionally, there is nothing in the
legislative record which indicates that Congress was even aware
of the GCMs which adopt plaintiff's position. Further, the
February 16, 1983 GCM states that,
Even though section 513(c) of the 1982 Act (the
Customary Use section) was not made retroactive, the
use of the word
"clarification" in the provision, and the Committee
Report language, suggest that the equipped-for-use
test the section prescribes is a correct
interpretation of present law. Thus, our prior
interpretation of present law, as set forth in the
GCMs was in error.
I.R.S. Positions Reports (CCH) ¶ 1164 (Feb. 16, 1983).
From the above, it is clear that the General Counsel's position
is that present law, which is the same as that affecting the case
at bar, imposes the equipped-for-use standard as adopted by this
Court in its January 13, 1983 order and by the Eighth Circuit in
Northern States Power Co. v. United States, 663 F.2d 55 (8th Cir.
1981). As the equipped-for-use standard is the appropriate test
under both existing law and the Act as effective July 1, 1984,
plaintiff's Motion for Reconsideration and Amendment must be
B. Defendant has moved this Court to amend its January 13, 1983
judgment to include interest on the unpaid taxes owed. The Court
hereby orders that the judgment be so amended.
Under 26 U.S.C. § 6601(a), interest on unpaid taxes shall be
paid at a rate of interest established under 26 U.S.C. § 6621.
Additionally, 28 U.S.C. § 1961(a) and (c)(1) specifically
provides that interest at the rate established under 26 U.S.C. § 6621
"shall" be allowed on any money judgment for federal taxes
rendered in a civil case in a district court. Pursuant to these
statutes, prejudgment and post-judgment interest is clearly owing
in the case at bar.
For the reasons stated herein, plaintiff's Motion for
Reconsideration and for Amendment of judgment is denied.
Defendant's Motion to Alter or Amend the judgment is granted to
provide defendants with an award of interest as provided by law.
IT IS SO ORDERED.