Senator Lowell C. Johnson AGO 91096 No. 91906
Nebraska Attorney General Opinions State of Nebraska Office of the Attorney General December 20, 1991 DATE: December 16, 1991
L STEVEN GRASZ SAM GRIMMINGER, DEPUTY ATTORNEYS GENERAL SUBJECT: Amendment of the Definition of Consummation of Sale Under Neb.Rev.Stat. § 77-27, 147 (Reissue 1990). REQUESTED BY: Senator Lowell C. Johnson Nebraska State Legislature WRITTEN BY: Don Stenberg, Attorney General, L. Jay Bartel, Assistant Attorney General. You have requested our opinion on two questions pertaining to a proposed amendment to
Neb.Rev.Stat. § 77-27,147 (Reissue 1990), establishing the definition of when a retail sale is "consummated" for purposes of determining application of the Local Option Revenue Act" [the "Act"]. Currently, § 77-27,147(1)(a) provides that, for purposes of the Act, a retail sale is generally consummated "[a]t the place where title, possession, or segregation takes place. . . regardless of the business location of the Nebraska retailer. ..." You state that your proposed legislation seeks "to establish that all sales are subject to local sales tax, if any, in effect at the business location of the retailer unless documented to have occurred at a location where a local sales tax is not applicable." Your initial question is whether § 77-27,147, amended as you propose, "on its face violate[s] the injunction imposed in
City of Lincoln v. McNeil. Docket 259, Page 228 (Dec. 31, 1969, Lancaster County District Court) against requiring businesses to collect a local option sales tax where a sale has taken place outside of the incorporated municipality?" In order to address this question, it is necessary to analyze the precise holding of the court in
McNeil, as well as the apparent basis for the court's decision in that case.
McNeil was an action brought by the City of Lincoln [the "City"] against the State Tax Commissioner seeking a declaration that 1969 Neb. Laws, LB 504, § 9, was unconstitutional and requesting that the Tax Commissioner be enjoined from enforcing the provisions of Section 9 of LB 504 and certain regulations promulgated to implement the law. Section 9 of LB 504 amended section 6 of 1969 Neb. Laws, LB 578, establishing the Local Option Revenue Act, to provide as follows:
For the purposes of the Local Option Revenue Act, all retail sales, rentals and leases, except sales of utility services, as
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