                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-1326
                                     ___________

GLB Enterprises, Inc.,                 *
                                       *
             Plaintiff-Appellee,       *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
United States of America,              *
                                       *
             Defendant-Appellant.      *
                                  ___________

                               Submitted: October 18, 2000

                                    Filed: November 28, 2000
                                     ___________

Before WOLLMAN, Chief Judge, LAY and BEAM, Circuit Judges.
                             ___________

LAY, Circuit Judge.

       This is an appeal by the United States following a jury verdict for GLB
Enterprise, Inc., (GLB) awarding a refund on the payment of excise taxes. GLB
asserted that the cotton module retriever it manufactures is exempt from excise taxes
imposed by Internal Revenue Code § 4051.1 The jury found that the retrievers were
exempt from tax because they were specially designed for the primary function of off-
highway transportation.


      1
          Section 4051 imposes an excise tax on truck chassis and bodies.
       GLB is in the business of manufacturing and selling cotton module retrievers for
loading and transporting cotton. Cotton module retrievers are trucks that are specially
equipped to load and transport cotton modules. Cotton modules are compacted bales
of picked cotton, usually seven feet high, eight feet wide, and thirty to thirty-five feet
long, weighing an average of 18,000 to 22,500 pounds. A cotton module retriever has
a specialized body that tilts hydraulically, in a manner similar to a dump truck, to allow
the module to be loaded and unloaded. When the body is tilted, the cotton module is
pulled onto the retriever by ten to twelve conveyor chains running lengthwise along the
bed.2

       GLB paid excise taxes on cotton module retrievers for the quarter ending
December 31, 1992. Subsequently, GLB filed a claim with the Internal Revenue
Service (IRS) for a refund based on Treasury Regulation § 48.4061(a)-1(d). After the
IRS denied GLB’s claim, GLB filed a complaint in district court. Both GLB and the
Government submitted motions for summary judgment which were denied. The case
then went before a jury. The district court narrowed the focus of the case to the
specific factual issues defined in the jury instructions and verdict form.3 The jury

      2
        The production of cotton module retrievers by GLB requires the modification
of a truck chassis. The truck chassis is generally purchased by the customer, who pays
the excise tax. GLB lengthens and reinforces the truck’s chassis in order to
accommodate the size and weight of the cotton modules. The retriever body, hydraulic
tilting mechanism, and track assembly are then attached to the reinforced chassis. In
order to operate the retrievers in some states and on interstate highways, special annual
permits are needed due to the retrievers’ length, width, and weight.
      3
        The Government concedes that in accordance with Internal Revenue Code
§4051 and Treasury Regulation § 48.4061(a)-1(d)(2)(ii), the district court properly
instructed the jury that:

      In order for you to find for the plaintiff, you must find, by a
      preponderance of the evidence, that the cotton module retrievers
      manufactured and sold by GLB Enterprises, Inc.:

                                           -2-
returned a verdict in favor of the GLB. The United States thereafter moved for a
motion for judgment as a matter of law, which the court denied. The United States now
appeals.

Discussion

        The Government argues that the evidence presented at trial was not sufficient to
support the jury’s verdict that GLB’s cotton module retrievers are exempt from the
federal excise tax. The Government believes that GLB did not produce more than a
scintilla of evidence to satisfy the tax exempt requirement of Treasury Regulation




      1.     Were specially designed for the primary function of transporting,
             in connection with a farming operation, a particular type of load
             other than over a public highway; and

      2.     That there is a special design and, by reason of their special design,
             their use for transportation on public highways is substantially
             limited or substantially impaired.

GLB Enterprises, Inc. v. United States, No. 96 Civ. 1019 (D.S.D. Nov. 3, 1999).

                                          -3-
§ 48.4061(a)-1(d)(2)(ii).4 See Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir. 1996).
We disagree.




      4
        A truck chassis is taxable under I.R.C. § 4051 unless it is not a highway vehicle
as defined by Treasury Regulation § 48.4061(a)-1(d)(1). See I.R.C. § 4051(a)(1). The
term “highway vehicle” is defined as “any self-propelled vehicle, or any trailer or
semitrailer, designed to perform a function of transporting a load over public highways,
whether or not also designed to perform other functions, but does not include a vehicle
described in paragraph (d)(2) of this section.” Id. Treasury Regulation § 48.4061(a)-
1(d)(2) contains two exceptions to the definition of “highway vehicle.” The district
court held that the first exception does not apply. The second exception is as follows:

      (ii) Certain vehicles specially designed for off-highway transportation.
      A self-propelled vehicle, or a trailer or semitrailer, is not a highway
      vehicle if it is (A) specially designed for the primary function of
      transporting a particular type of load other than over the public highway
      in connection with a construction, manufacturing, processing, farming,
      mining, drilling, timbering, or operation similar to any one of the
      foregoing enumerated operations, and (B) if by reason of such special
      design, the use of such vehicle to transport such load over the public
      highways is substantially limited or substantially impaired. For purposes
      of applying the rule of (B) of this subdivision, account may be taken of
      whether the vehicle may travel at regular highway speeds, requires a
      special permit for highway use, is overweight, overheight or overwidth for
      regular use, and any other relevant considerations. Solely for purposes of
      determinations under this paragraph (d)(2)(ii), where there is affixed to
      the vehicle equipment used for loading, unloading, storing, vending,
      handling, processing, preserving, or otherwise caring for a load
      transported by the vehicle over the public highways, the functions are
      related to the transportation of a load over the public highways even
      though such functions may be performed off the public highways.

Id.

                                          -4-
       Treasury Regulation § 38.4061(a)-1(d)(2)(ii) requires that the primary function
of the cotton module retrievers is for transporting loads other than over a public
highway and that the retrievers have a special design that substantially limits or impairs
transportation over a public highway. With respect to the first requirement, the
Government’s position is that the evidence is undisputed that the retrievers were
required to travel over public highways, for distances averaging eight to twelve miles
and ranging up to 100 miles, in order to perform their designated purpose of
transporting cotton modules from the fields to the cotton gins. See Treas. Reg.
§ 48.4061(a)-1(d)(2)(ii)(A). In addition, one of the special design features of GLB’s
cotton module retrievers is to load and unload cotton modules. The Government argues
that this feature satisfies the requirement of Treasury Regulation § 48.4061(a)-
1(d)(2)(ii), which expressly states that

      where there is affixed to the vehicle equipment used for loading,
      unloading, . . . or otherwise caring for a load transported by the vehicle
      over the public highways, the functions are related to the transportation
      of a load over the public highways even though such functions may be
      performed off the public highways.

        GLB responds that the cotton module retrievers are specially designed for off-
road use. The evidence from trial reflects that the overall dimensions, frame,
reinforcements, track system, gearing, tires, and other components of the vehicle were
designed to allow the retrievers to operate in fields, farm roads, and gin yards. GLB
concedes that the retrievers are used on public highways, but points out that
transportation over a public highway is not their primary purpose. GLB analogizes the
present case to an IRS Revenue Ruling involving oil-rig semi-trailers. See Rev. Rul.
77-141, 1977-1 C.B. 317. In the semi-trailer ruling, the IRS found that while the semi-
trailers could be used on public highways, their primary purpose was the transportation
of oil in oil fields. GLB argues that the same is true for cotton module retrievers.
While the retrievers can be used on public highways, their primary design is for off-
road use.

                                           -5-
      GLB also distinguishes the cotton module retrievers from loading and unloading
equipment, where the primary design is to transport materials and not to load materials.
According to GLB, the special design of the cotton module retrievers is not limited to
loading and unloading cotton modules, but includes off-road transportation. Thus, GLB
believes it produced sufficient evidence for the jury to conclude that the primary
purpose of the cotton module retrievers is not for transportation on public highways.

       With respect to the second requirement of Treasury Regulation § 48.4061(a)-
1(d)(2)(ii), the Government argues that there is insufficient evidence in the record to
show that the retrievers are substantially limited or substantially impaired for highway
use. See Treas. Reg. § 48.4061(a)-1(d)(2)(ii)(B). The Government contends the
evidence shows that the majority of the distance traveled by the retrievers is on public
roads. The Government argues that GLB’s own brochures advertise that the retrievers
possess long-distance hauling ability. Thus, if the retrievers are substantially impaired
from traveling on public roads, then the purpose of the retrievers is also impaired since
the sole purpose of the retrievers is to transport cotton from the field to the gin.

       The Government further argues that when the size or weight of the cotton
modules exceeds the limits set by state law, special permits can be obtained to allow
the retrievers to operate fully loaded on public highways. The Government contends
that these special permits are proof that state transportation officials do not believe that
the ability of cotton module retrievers to carry loads on public highways is substantially
impaired. Since the cotton module retrievers can operate on public highways with
these permits, the Government reasons that no legal or practical restrictions are placed
on the operation of cotton module retrievers on public highways.

     GLB, on the other hand, points to evidence from trial showing the use of cotton
module retrievers on public highways is substantially limited or impaired. The
evidence demonstrates that retrievers are overweight, which impairs braking; are
overlength, creating dangerous tail swings; and have a high, rearward center of gravity,

                                            -6-
creating dangerous roll instability. For these reasons, the special permits needed to
allow the retrievers to operate on public highways limits their use to certain roads,
during certain hours, within certain distances of a gin, and during certain months of the
year. The evidence shows that these restrictions make the retrievers worthless for any
purpose other than as a cotton module retriever during the cotton season and that these
restrictions place substantial limitations or impairment on the use of cotton module
retrievers on public highways. GLB believes this evidence is more than sufficient for
the jury below to find that GLB was exempt from the federal excise tax.

       The Government urges that it is entitled to a judgment as a matter of law on the
ground that there is insufficient evidence to support the jury verdict. Our standard for
review has been expressed in several ways. However, the best test, as enunciated early
by the Supreme Court, is whether the evidence is such that, without weighing the
credibility of the witness or otherwise considering the weight of the evidence, there can
be only one conclusion as to the verdict that reasonable persons could have reached.
Lavender v. Kurn, 327 U.S. 645, 653 (1946). “[O]nly when there is a complete
absence of probative facts to support the conclusion reached does a reversible error
appear.” Id.; see also Brady v. Southern Railroad Company, 320 U.S. 476, 479-80
(1943). In considering a judgment as a matter of law, we have long recognized that we
must also view the overall evidence in the light most favorable to the verdict holder and
that party must be given the benefit of all favorable inferences, which may be drawn
from the evidence. See Stockmen’s Livestock Market, Inc. v. Norwest Bank of Sioux
City, 135 F.3d 1236, 1240 (8th Cir. 1998); Chicago Title Ins. Co. v. Resolution Trust
Corp., 53 F.3d 899, 904 (8th Cir. 1995). In the present case, the evidence was
conflicting. As then-Chief Judge Richard S. Arnold recognized in Forbes v. Arkansas
Educational Television Commission, 93 F.3d 497 (8th Cir. 1996): “We do not know
what our answer would have been if we had been sitting on the jury, but that is not
important. There was conflicting evidence on this issue, and it could have gone either
way. Making decisions of this kind is exactly what juries are for.” Id. at 501.


                                          -7-
      Under existing standards, we find sufficient evidence to uphold the jury verdict.



WOLLMAN, Chief Judge, dissenting.

       Because the undisputed evidence so clearly establishes that the primary purpose
of the retrievers is to load and then transport cotton modules on public highways that
no reasonable jury could find otherwise, I must respectfully dissent from the affirmance
of the judgment.

       As the court’s opinion sets forth, the evidence is undisputed that the retrievers
are required to travel over public highways in order to perform their designed purpose
of transporting cotton modules from the fields to the cotton gins. Indeed, GLB’s own
advertising brochure, entitled “Move With The Future,” states in part “Whether your
module retriever is going on 200-mile hauls or just across the gin yard, you can be
assured that you will be able to return to the gin with a module with a G.L.B. Module
Retriever.”

       True enough, the retrievers, given their length, height, and weight, require careful
attention by the driver and more than normal space in which to turn from the highway
to a gin yard or a loading site. Nevertheless, they can be driven up to and in excess of
posted speed limits. Also true enough, the retrievers are specially designed to load the
modules, having an ingenious, unique rear-mounted track assembly that enables the
operator to load a module without utilizing the reverse gear on the truck itself in all but
the most severe operating conditions.

       That acknowledged, however, the record is clear that once the operator has
loaded the module, the function of the retriever, equal in importance to that of loading
the module, is to transport the module over a public highway to a cotton gin. Save for
the cotton grower who owns his own gin (and the testimony referred to only one such --

                                           -8-
the J.G. Boswell Co. in California), a retriever must travel over the public highways to
fulfill that function. Thus, unlike a truck that is specially designed and equipped to
transport the heavy draw-works employed in the oil drilling industry and thus a vehicle
that can fulfill its primary function of transporting those heavy loads largely within the
confines of an oil field, the module retrievers cannot fulfill their primary function of
loading and transporting modules without traveling over and upon public highways.

     Accordingly, I would reverse the judgment and remand with directions that
judgment be entered in favor of the government.

      Judgment AFFIRMED.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -9-
