weight' of 27,000 pounds. Taxpayer apparently has not questioned the fact of 14,000 pounds being customarily carried by vehicles of the type having an actual unloaded weight of 13,000 pounds. Since this matter was considered by the Commissioner in arriving at his classification, we need not go further than to say that it appears to be reasonable. As a matter of fact, we could say no more on the basis of the record before us.
Since the tax levied by Congress was upon the use of the highways by motor vehicles according to a customary maximum weight, as opposed to a tax on actual weight, we are of the opinion that the regulations are reasonable and are not arbitrary and capricious as to the plaintiff.
Taxpayer argues that since its trucks are registered with the authorities of Pennsylvania and New York as having gross weights of 26,000 pounds or less, the regulations impute that plaintiff has repeatedly violated the laws of these States. Again, we must call attention to the fact that the tax was not intended to be imposed on actual weights. Plaintiff does not argue, nor could it do so, that the 13,000 actual unloaded pounds classification imputes these violations, but it contends that the total figure of 27,000 pounds does so. Since the latter figure is not based entirely on actual weight, but is a combination of actual and customary weights, the regulation has not assumed that the taxpayer is actually violating the State laws.
Since the Code and regulations have used standards different from those employed by the State statutes in determining gross weight, and since gross weight under the State law is not tantamount to 'taxable gross weight' under the Code, the two cannot be set against each other to impute the violations.
Plaintiff has cited Republic Oil Refining Co. v. Granger, 3 Cir., 1952, 198 F.2d 161, as authority for the proposition that State law can be resorted to when interpreting whether a taxpayer comes within the scope of a Federal excise tax. That case would not be applicable here. In Republic, the question before the Court was whether or not certain easements were part of the 'premises' of the taxpayer. Since 'premises' was a term which could be interpreted by resorting to State law, the Court of Appeals concluded that State law, although not controlling, was relevant.
The instant case differs from Republic insofar as the State standards for registering and the Federal standards for taxing are actually different. The State law, having no effect in determining what Congress meant by 'taxable gross weight,' cannot have any effect in determining the validity of the statutory definition or its interpretation by the regulations.
Plaintiff also contends that since its vehicles always carry a gross weight of less than 26,000 pounds, it was exempt from the statute under Section 4481(a). This argument can be answered summarily by stating that the exemption under Section 4481(a) refers to vehicles having a 'taxable gross weight' of less than 26,000 pounds. In view of what has been previously stated, no more need be said.
Taxpayer finally suggests that the use tax schedule of the regulations in question is in violation of the 'due process' clause of the Fifth Amendment to the Federal Constitution in that it conclusively presumes that the taxpayer's vehicles have a taxable gross weight of 27,000 pounds. We believe that all parties will agree that the schedule 'conclusively presumes' that plaintiff's vehicles have a 'taxable gross weight' of 27,000 pounds. But we fail to see where in this 'presumption' violates taxpayer's constitutional rights. Since the tax is based on the use of public highways by certain vehicles and not on the vehicles' actual weights, the 'presumption' is harmless. Perhaps the term 'taxable gross weight' in the statute was a poor choice. It certainly has been unfortunate -- at least so far as this case is concerned. However, there can be no question as to the Congressional intent. The actual weights of particular vehicles were never contemplated as a basis for the tax. The maximum weight load customarily carried on vehicles of the same type is, in our opinion, a reasonable classification.
Plaintiff's motion for summary judgment is denied. Although defendant has not formally moved for summary judgment, we are of opinion that no genuine issue of material fact need be tried. Therefore, summary judgment will be entered for defendant. 6 Moore, Federal Practice, par. 56.12.