                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                              July 22, 2008 Session

          HIGH COUNTRY ADVENTURES, INC. v. POLK COUNTY

                       Appeal from the Chancery Court for Polk County
                            No. 6924 Jerri Bryant, Chancellor



               No. E2007-02678-COA-R3-CV - FILED NOVEMBER 10, 2008



The issues in this case are whether operators of whitewater rafting ventures responsible for collecting
a county privilege tax imposed upon consumers participating in commercial rafting ventures in Polk
County have standing to challenge the tax and if so, whether the tax is invalid because it is
preempted by federal law. Upon careful review of the record and applicable law, we conclude that
the operators have standing to contest the legality of the privilege tax and that the tax is preempted
by federal law and is, therefore, invalid.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part
                        and Reversed in Part; Cause Remanded

SHARON G. LEE, SP. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
D. MICHAEL SWINEY , J., joined.

Carl E. Hartley and Justin M. Sveadas, Chattanooga, Tennessee, for the appellant, High Country
Adventures, Inc.

Christopher W. Conner, Maryville, Tennessee, for the appellants, Cripple Creek; Southeastern
Expeditions; Nantahala Outdoor Center, Inc.; USA Raft, Inc.; Lamar Davis d/b/a Outland
Expeditions; Ocoee Adventure Company, LLC; Ocoee Inn Rafting, Inc.; Wildwater Ltd.; Adventures
Unlimited, Inc.

Denny E. Mobbs, and Ginger Wilson Buchanan, Cleveland, Tennessee, for Polk County, Tennessee.
                                                            OPINION

                                                         I. Background

         The facts in this case are not in dispute. In 1981, the Tennessee legislature enacted a private
act (“the 1981 Act”) authorizing Polk County to levy a privilege tax on consumers participating in
activities that included commercial whitewater rafting excursions in Polk County. As particularly
pertinent to the present appeal, the 1981 Act included the following sections, beginning with Section
2, which stated:

                    The legislative body of Polk County is hereby authorized to levy a
                    privilege tax upon the privilege of a consumer paying consideration
                    for admission for an amusement. Such tax shall be imposed on the
                    consideration charged by the operator at a rate equivalent to the
                    combined rate imposed by the state and Polk County under the
                    “Retailers’ Sales Tax Act” and the “1963 Local Option Revenue Act”
                    pursuant to Tennessee Code Annotated, Title 67, Chapter 30, as the
                    same may be amended and adopted. Such tax so imposed is a
                    privilege tax upon the consumer enjoying the amusement and is to be
                    collected and distributed as provided in this act.

      The term “operator” as used in the 1981 Act was defined as “. . . the person operating an
amusement,” and the term “amusement” was further defined as follows:

                    “amusement” means any ride, excursion, or float trip by canoe, raft,
                    or similar floating device on a whitewater river where a fee is charged
                    by any person for such ride, excursion, or float trip, which charge is
                    otherwise not included as a taxable privilege under the “Retailers’
                    Sales Tax Act” imposed by Tennessee Code Annotated, Title 67,
                    Chapter 30.1



          1
           The Retailers’ Sales Tax Act provides that activities such as the whitewater rafting in this case shall be exempt from
taxation as an amusement as follows:

                    There is exempt from the sales tax on admission, dues or fees imposed by § 67-6-212:
                    . . . Events or activities conducted upon rivers and waterways in this state whose continued
                    use for recreational purposes is contingent upon revenue produced pursuant to agreements
                    entered into between the State of Tennessee and the federal government, or an agency
                    thereof, which agreements provide for the establishment of a trust fund for such purposes;
                    provided, that this exemption shall prevail only if the annual distribution of funds to the state
                    from such trust fund exceeds that amount of revenue to the state that would otherwise be
                    produced if the amusement tax under the provisions of § 67-6-212 were impose on such
                    events or activities, as determined by the fiscal review committee.

Tenn. Code Ann. § 67-6-330(a)(8).

                                                                   2
        As to collection of the tax from the consumer and remittance of such taxes to Polk County,
the 1981 Act further provided at Section 3 that “[s]uch tax shall be added by each operator to the
consideration charged for admission for such amusement, and shall be collected by such operator
from the consumer and remitted by such operator to the county trustee. The tax shall not be assumed
by the operator.”

        Finally, Section 9 of the 1981 Act provided as follows with respect to remedies for recovery
of allegedly erroneous tax payments:

               Upon any claim of illegal assessment and collection, the operator
               liable for collecting and remitting the tax shall have the remedy
               provided in Tennessee Code Annotated, Title 67, Chapter 23 for
               recovery of erroneous tax payments, it being the intent of this act that
               the provisions of law which apply to the recovery of taxes illegally
               assessed and collected shall apply to the tax collected under the
               authority of this act; provided, the county trustee shall possess those
               powers and duties as provided in Tennessee Code Annotated, Section
               67-2301, with respect to the adjustment and settlement with such
               operators of all errors of taxes collected by him under the authority of
               this act and direct the refunding of the same. Notice of any tax paid
               under protest shall be paid to the county trustee, and suit for recovery
               shall be brought against him.

        Section 2 of the 1981 Act was amended in 1997 to delete the first sentence and substitute
therefor: “The Legislative Body of Polk County is hereby authorized to levy a privilege tax upon the
privilege of a consumer participating in an amusement for which an admission fee is charged.”

        In April of 2001, the legislature, again by private act, reenacted and restated the 1981 Act.
This reenactment/restatement (“the 2001 Act”) changed certain aspects of the 1981 Act. Of note,
as relevant to matters in this opinion, Section 7 of the 2001 Act restated Section 9 of the 1981 Act,
pertaining to remedies with respect to erroneous payments, as follows:

               Upon any claim of illegal assessment and collection, the operator
               liable for collecting and remitting the tax shall have the remedy
               provided in Tennessee Code Annotated, Title 67, Chapter 1, Part 9,
               for recovery of erroneous tax payments, it being the intent of this act
               that the provisions of law which apply to recovery of taxes illegally
               assessed and collected shall apply to the tax collected under the
               authority of this act; provided, the county trustee shall possess those
               powers and duties as provided in Tennessee Code Annotated, Section
               67-1-707, with respect to the adjustment and settlement with such
               operators of all errors of taxes collected by him under the authority of
               this act and direct the refunding of the same. Notice of any tax paid


                                                  3
                    under protest shall be paid to the county trustee, and suit for recovery
                    shall be brought against him.

        By original complaint filed in the Polk County Chancery Court in November of 2001 and
subsequent amendments to same, High Country Adventures, Inc. (“High Country”), a commercial
whitewater rafting enterprise operating on the Ocoee River in Polk County, sued Polk County,
seeking a refund of privilege taxes paid under protest under the 2001 Act in the total amount of
$30,598.84 for the months of April through October 2001. As grounds for suit, High Country
asserted, inter alia, that Polk County is barred from imposing the privilege tax upon sales of tickets
by High Country outside of Polk County, or alternatively, outside of Tennessee, and that Polk
County is barred from enforcing the tax because it is inconsistent with 33 U.S.C. § 5, which was
amended by the Maritime Transportation Security Act of 2002 (“the MTSA”) to prohibit counties
and states from levying a tax, fee, or other imposition upon any vessel or other watercraft operating
on any navigable waters subject to the authority of the United States. Separate complaints also
requesting refund of taxes paid under protest upon these same two grounds were filed by the
following additional businesses operating rafting ventures on the Ocoee River in Polk County (“the
other Operators”): Adventures Unlimited, Inc.; Ocoee Inn Rafting, Inc.; Wildwater Ltd.; USA Raft,
Inc.; Nantahala Outdoor Center, Inc.; Ocoee Adventures Company, L.L.C., d/b/a Ocoee Adventure
Center; Lamar Davis., d/b/a Outland Expeditions; Southeastern Expeditions; and Cripple Creek.

        On June 16, 2006, the trial court granted summary judgment in favor of High Country and
the other Operators based upon the court’s conclusion that the authority of Polk County to impose
the privilege tax is confined to activities, including ticket sales, that occur within Polk County and
the further conclusion that 11 U.S.C. § 5(b) as amended by the MTSA prohibited Polk County from
imposing the subject privilege tax after 2002. Following entry of summary judgment, Polk County
filed a motion to dismiss and/or in the alternative, a motion for judgment on the pleadings and later,
a motion to alter or amend the judgment. As grounds for the latter motion, Polk County argued that
High Country and the other rafting company Operators “are without standing to prosecute the claims
asserted in their Petitions or Complaints and are without standing to attack the constitutionality or
legality of the underlying privilege tax” and that, as a consequence, the trial court does not have
subject matter jurisdiction. The trial court granted the motion on these grounds and thereafter,
granted the motion to dismiss the complaints of High Country and the other Operators. High
Country and the other Operators filed their notices of appeal of the trial court’s decision, and, the
issues being the same, all such appeals were consolidated as the matter now before us2.

                                                            II. Issues

          We address the following issues:



          2
            Given this consolidation of parties, reference to High Country in this opinion shall also constitute a reference to the
other rafting business operators who also joined in this appeal, to wit, Cripple Creek; Southeastern Expeditions; Nantahala
Outdoor Center, Inc.; USA Raft, Inc.; Lamar Davis d/b/a Outland Expeditions; Ocoee Adventure Co., L.L.C. d/b/a Ocoee
Adventure Center; Ocoee Inn Rafting, Inc.; Wildwater Ltd.; and Adventures Unlimited, Inc.

                                                                  4
        1) Whether the trial court erred in granting Polk County’s motion to alter or amend, and
therefore, its motion to dismiss, upon grounds that High Country and the other rafting business
operators lack standing to challenge the contested tax and that the trial court, therefore, lacks subject
matter jurisdiction in the case.

        2) Whether the trial court erred in granting High Country’s motion for summary judgment
upon the ground that 33 U.S.C. § 5 as amended by the MTSA preempted the subject Polk County
privilege tax.

                                             III. Analysis

                                        A. Standard of Review

        In this appeal, we review the trial court’s grants of Polk County’s motion to alter or amend
and motion to dismiss, and High Country’s motion for summary judgment according to the following
respective standards.

        First, a motion to alter or amend is reviewed under an abuse of discretion standard. Stovall
v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). Under the abuse of discretion standard, a trial court
ruling will not be disturbed if reasonable minds can disagree as to its propriety, and no abuse of
discretion will be found unless the trial court applied an incorrect legal standard or reached a
decision against logic or reasoning which causes an injustice to the party complaining. Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). An abuse of discretion occurs when the lower court’s
decision is without a basis in law or fact and is, therefore, arbitrary, illogical, or unconscionable.
State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn. 2000).

        The standard for reviewing a motion to dismiss under Tenn. R. Civ. P. 12 was restated by
the Supreme Court as follows:

                In reviewing a motion to dismiss, the appellate court must construe
                the complaint liberally, presuming all factual allegations to be true
                and giving the plaintiff the benefit of all reasonable inferences.
                Therefore, the factual allegations are taken as true, and our review is
                limited to the lower court’s legal conclusions. These questions of law
                are reviewed de novo with no presumption that the lower court’s
                conclusions are correct.

Tigg v. Perelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007) (citations omitted).

        Finally, summary judgments enable courts to conclude cases that can and should be resolved
on dispositive legal issues. See Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Airport Props.
Ltd. v. Gulf Coast Dev., Inc., 900 S.W.2d 695, 697 (Tenn. Ct. App. 1995). They are appropriate
only when the facts material to the dispositive legal issues are undisputed. Accordingly, they should
not be used to resolve factual disputes or to determine the factual inferences that should be drawn

                                                   5
from the evidence when those inferences are in dispute. See Bellamy v. Fed. Express Corp., 749
S.W.2d 31, 33 (Tenn. 1988).

        Our task on appeal is to review the record to determine whether the requirements for granting
summary judgment have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997);
Aghili v. Saadatnejadi, 958 S.W.2d 784, 787 (Tenn. Ct. App. 1997). Tennessee Rule of Civil
Procedure 56.04 provides that summary judgment is appropriate where: (1) there is no genuine issue
with regard to the material facts relevant to the claim or defense contained in the motion, see Byrd,
847 S.W.2d at 210; and (2) the moving party is entitled to a judgment as a matter of law on the
undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). A
party seeking a summary judgment must demonstrate the absence of any genuine and material factual
issues. Byrd, 847 S.W.2d at 214.

         The Tennessee Supreme Court in Hannan v. Alltel Publishing Co., __ S.W.3d __ , No.
E2006-01353-SC-R11-CV, 2008 WL 4755788 (Tenn., filed Oct. 31, 2008), has recently clarified
the moving party’s burden of proof in a summary judgment motion. A moving party who seeks to
shift the burden of production to the nonmoving party who bears the burden of proof at trial must
either: (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that
the nonmoving party cannot prove an essential element of the claim at trial. When the party seeking
summary judgment has made a properly supported motion, the burden shifts to the non-moving party
to set forth specific facts establishing the existence of disputed, material facts which must be
resolved by the trier of fact. See Byrd 847 S.W.2d at 215; Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997). The non-moving party may not simply rest upon the pleadings, but must offer proof
by affidavits or other discovery materials (depositions, answers to interrogatories, and admissions
on file) provided by Rule 56.06 showing that there is a genuine issue for trial. If the non-moving
party does not so respond, then summary judgment, if appropriate, shall be entered against the non-
moving party. Tenn. R. Civ. P. 56.06.

        Summary judgments do not enjoy a presumption of correctness on appeal. See Nelson v.
Martin, 958 S.W.2d 643, 646 (Tenn. 1997); City of Tullahoma v. Bedford County, 938 S.W.2d 408,
412 (Tenn. 1997). Accordingly, when we review a summary judgment, we view all the evidence in
the light most favorable to the non-movant, and we resolve all factual inferences in the non-movant’s
favor. See Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox County Bd.
of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). A summary judgment will be upheld only when the
undisputed facts reasonably support one conclusion – that the moving party is entitled to a judgment
as a matter of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder,
913 S.W.2d 150, 153 (Tenn. 1995).

                           B. Standing and Subject Matter Jurisdiction

         We begin with the question of whether the trial court erred in granting Polk County’s motion
to alter or amend and therefore, its motion to dismiss, upon grounds that High Country was without
standing to assert the claims set forth in its complaint, and as a result, the trial court was without


                                                  6
subject matter jurisdiction.

         In its October 26, 2007 order granting Polk County’s motion to alter or amend, the trial court
set forth the rationale for its determination with respect to the issues of standing and subject matter
jurisdiction. In such order, the trial court observed that, as a general matter, administrative remedies
exist to address questions of fact, while judicial remedies exist to address questions of law. The trial
court maintained that under both the 1981 Act and its 2001 re-enactment, the legislature accorded
rafting business operators, such as High Country, administrative standing to address and adjust only
factual mistakes in the assessment and collection of the tax, but not standing to address the legality
of the tax. This is evident, the trial court reasoned, from reading Tenn. Code Ann. § 67-1-701, cited
in Section 7 of the 2001 Act, which authorizes county clerks to make administrative adjustments for
taxes they have erroneously collected. The trial court stated that questions of law are subject to a
judicial remedy provided by Tenn. Code Ann. § 67-1-901, which allows for the recovery of taxes
paid under protest. However, the trial court noted, as dictated by Tennessee case law, this judicial
remedy is only available to the “taxpayer” – the person upon whom the tax is imposed and who is,
therefore, obligated to pay the tax. The trial court determines that because the privilege tax was not
assessed against the rafting company operators, and they were not required to pay the taxes but only
to collect the taxes, “they do not sustain any injury distinct and palpable from the general population
with respect to the tax” and, therefore, do not have standing to prosecute a suit upon grounds that
the tax is illegal.

        Under ordinary circumstances, we agree with the trial court’s conclusion that a party such
as High Country would be without judicial standing. As noted, the privilege tax in this matter is not
imposed upon the business operator but is, rather, a “tax upon the consumer enjoying the
amusement.” Further, it is well-settled at common law that “a non-taxpayer cannot maintain an
action against a taxing authority for the recovery of taxes even though he may bear the economic
burden of those taxes.” Beare Co. v. Olsen, 711 S.W.2d 603, 605-06 (Tenn. 1986). However, as
we have indicated on prior occasion, even where there is not standing at common law, standing may
be created by an act of the legislature:

               In cases involving statutory causes of action, a party’s standing may
               depend upon requirements contained in the statute creating the cause
               of action. If these requirements have been defined by statute, it is
               proper for the courts to conclude that the General Assembly has
               exercised its constitutional prerogative to determine the conditions
               under which a party will be permitted access to the courts. Thus,
               courts should defer to legislative standing criteria contained in
               statutes creating new causes of action.

City of New Johnsonville v. Handley, No. M2003-00549-COA-R3-CV, 2005 WL 1981810 at *15
n. 23 (Tenn. Ct. App. M.S., filed Aug. 16, 2005).

       It is our opinion that High Country does have judicial standing in this matter as a


                                                   7
consequence of specific legislative mandate. In this regard, we note a portion of the second
paragraph of Section 7 of the 2001 Private Act, which states as follows:

               Upon any claim of illegal assessment and collection, the operator
               liable for collecting and remitting the tax shall have the remedy
               provided in Tennessee Code Annotated, Title 67, Chapter 1, Part 9,
               for recovery of erroneous tax payments, it being the intent of this act
               that the provisions of law which apply to recovery of taxes illegally
               assessed and collected shall apply to the tax collected under the
               authority of this act . . . .”

It is a well-settled rule that enactments of the General Assembly are to be construed as written so as
to give effect to the purpose of the enactment. Auto Credit of Nashville v. Wimmer, 231 S.W.3d
896, 900 (Tenn. 2007). The natural and ordinary meaning of the language in this portion of the 2001
Act gives High Country judicial standing to pursue its claims against Polk County because as an
“operator” as defined by the Act, it is claiming that the taxes in question were illegally assessed, and
it is allowed the remedies set forth at Tenn. Code Ann. § 67-1-901, et seq. without exception. We
discern the nature of such remedies to include legal, as opposed to merely administrative remedies,
upon our review of both Tenn. Code § 67-1-901(a) and § 67-1-912 which respectively provide as
follows:

               In all cases where not otherwise provided in which an officer, charged
               by law with the collection of revenue due the state, shall institute any
               proceeding, or take any steps for the collection of the sum alleged or
               claimed to be due by the officer from any citizen, the person against
               whom the proceeding or step is taken shall, if that person conceives
               the same to be unjust or illegal, or against any statute, or clause of
               the constitution of the state, pay the revenue under protest.

Tenn. Code Ann. § 67-1-901(a) (emphasis added).

               (a) The provisions of §§ 67-1-901– 67-1-905 and 67-1-908 – 67-1-
               910 apply to the recovery of all taxes collected by any of the counties
               of this state.
               (b)(1) The county officer collecting any county taxes paid under
               protest shall pay such revenue into the county treasury and, at the
               time of payment, shall give notice to the county mayor and board of
               commissioners, or other governing body of a county, that the same
               were paid under protest.
               (2) If it be finally determined by any court having jurisdiction of any
               suit brought within six (6) months after such payment under protest
               against the county to recover such taxes that the same were
               wrongfully collected, as not being due from a party to the county, the


                                                   8
               county shall refund such taxes with such interest as the court may
               determine to be proper, not exceeding the legal rate, and shall pay
               costs of the cause.

Tenn. Code Ann. § 67-1-912 (emphasis added). The emphasized language in Tenn. Code Ann. §
67-1-901 clearly contemplates that a party contesting taxes may do so on the basis of illegality and
unconstitutionality, and § 67-1-912 further contemplates that such contest will be ruled upon by the
trial court, which will also determine the proper amount of any refunds due the complainant.

        In support of its argument that only a taxpayer has standing to recover taxes such as the
privilege taxes paid by High Country, Polk County relies upon Admiralty Suites & Inns, LLC v.
Shelby Co., 138 S.W.3d 233 (Tenn. Ct. App. 2003); Brodbine, v. Torrence, 545 S.W.2d 743 (Tenn.
1977); and Ashworth v. Greene Co., No. E2002-0050-COA-R3-CV, 2003 WL 288430 (Tenn. Ct.
App. E.S., filed Feb. 10, 2003), the latter two cases being also cited by the trial court in its order
granting Polk County’s motion to alter or amend. However, none of these cases involved legislation
granting standing to a party other than the taxpayer and therefore, we do not find them to be
controlling in the present context.

        In support of its argument that High Country has only administrative standing to contest the
taxes in question, Polk County also relies on Fentress County Bank v. Holt, 535 S.W.2d 854 (Tenn.
1976) wherein the Tennessee Supreme Court held that “a taxpayer has two remedies for the recovery
of county taxes, viz: (1) the administrative procedure provided under Section 67-2301, T.C.A. and
(2) payment under protest and a common law suit for recovery.” Id. at 855, citing Holloway v.
Putnam County, 534 S.W.2d 292 (Tenn. 1976). Polk County argues that given this holding, “the
remedy provided to the rafting operators under Section 9 of the Private Act of 1981 (and Section 7
of the Private Act of 2001), confers only an administrative remedy related to questions of fact
pertaining to erroneous assessments or collections as between the rafting operator, as tax collector,
and the county trustee. Section 9 of the Private Act provides an administrative remedy to the rafting
operators, but does not confer standing on the rafting operator as a taxpayer to contest the legality
or constitutionality of the Private Act.” We do not agree.

        Tennessee Code Annotated § 67-2301 was subsequently codified as § 67-1-707 and provides
in pertinent part as follows:

               (a) The county clerks of the various counties are also authorized and
               empowered to settle and adjust with taxpayers all errors and double
               assessments of county taxes erroneously or illegally collected by them
               and to direct the refunding of the taxes. Any claim for such refund by
               the county of taxes or revenue alleged to have been erroneously or
               illegally paid shall be filed with the county clerk, supported by proper
               proof within one (1) year from the date of payment; otherwise, the
               taxpayer shall not be entitled to a refund and the claim for refund
               shall be barred.


                                                  9
Tenn. Code Ann. § 67-1-707(a). While we agree that the remedy provided by this section is an
administrative remedy that was given High Country under Section 7 of the 2001 Act, we do not agree
that it was the only remedy given High Country under that act, which, as we have stated, also
includes a grant of remedy under Tenn. Code Ann. § 67-1-901, et seq., including the right to have
a court decide legal issues such as those raised in the instant matter. As recognized by the high court
in Holloway, the remedy under § 67-1-707 “provides an unacceptable remedy for a taxpayer whose
taxes are tainted with the illegality of wrongful assessments or any form of invalidity which may not
be processed on an administrative basis.” Holloway, at 294-95; see also Hertz Corp. v. Co. of
Shelby, 667 S.W.2d 66, 69 (Tenn. 1984).

        Aside from what we construe to be the clear language of the subject legislation, we also find
support for a grant of judicial standing to High Country under the Tennessee Supreme Court’s
opinion in Austin Co. v. Woods, 620 S.W.2d 73 (Tenn. 1981). In that case, a chemical manufacturer
entered into a contract with its general contractor to build the manufacturer’s new plant and to
procure required materials from suppliers, with such suppliers to be paid by check from the
contractor’s bank account which was funded by the manufacturer. The contractor, also pursuant to
its contract with the manufacturer, paid sales and use taxes for two years based upon the cost of
purchase and installation of items of personal property purchased for the manufacturer. After the
building project was completed, the Commissioner of Revenue assessed the contractor an additional
amount for sales and use taxes for the two years, plus penalty and interest. The manufacturer paid
the assessed amount under protest. The Commissioner argued that the manufacturer did not have
standing under Tenn. Code Ann. § 67-2303, now Tenn. Code Ann. § 67-1-901. As noted, this statute
provides for payment of the tax under protest by the person against whom steps or proceedings are
taken to collect a tax such person “conceives to be unjust or illegal, or against any statute or clause
of the Constitution of the state.” The Commissioner contended that the manufacturer was without
standing because the assessment was against the contractor, not the manufacturer, and therefore, the
manufacturer was not “the person against whom the proceeding or step (was) taken” as designated
under the statute. The Supreme Court disagreed, concluding that the manufacturer had standing to
contest the tax because it paid the tax pursuant to its contractual obligation and was, therefore,
subrogated to the remedies of the assessed contractor. The Commissioner relied upon the previously
noted case of Brodbine v. Torrence, wherein the Court had denied standing to liquor retailers who
had attempted to challenge a tax on liquor wholesalers. The Court distinguished Brodbine upon the
fact that the retailers in that case had claimed standing upon the argument that they bore the
economic burden of the tax as it was passed on to them, but that they did not pay the tax and “[t]hey
had no express liability for tax either by statute (or ordinance) or contract.” Id. at 75.

        Like the manufacturer in Austin and unlike the plaintiffs in Brodbine, High Country has
express liability for the privilege tax that Polk County seeks. This liability derives from the taxing
legislation itself. Although the legislation does not impose the tax on High Country, just as the
manufacturer in Austin was not the assessed party, the legislation does make High Country expressly
liable for the tax, providing as follows at Section 5, that the operator, not the consumer, shall be
penalized if the tax is not timely paid to the county trustee:



                                                  10
                Taxes due by an operator which are not remitted to the county trustee
                on or before the due dates as provided in this act are delinquent.
                When an operator fails to remit the tax due, or any portion thereof,
                required by this act on or before such due date, there shall be imposed
                a specific penalty, to be added to the amount of the tax which is
                delinquent, in the amount of five percent (5%), if the failure is not
                more than thirty (30) days, with an additional five percent (5%) for
                each additional thirty (30) days or fraction thereof, during which the
                failure continues, not to exceed twenty-five percent (25%) in the
                aggregate. Provided, however, where a return is delinquent at the
                time it is filed or becomes delinquent, the minimum penalty may be
                five dollars ($5.00) regardless of the amount of tax due or whether
                there is any tax due. When an operator fails to remit such tax due, or
                any portion thereof on or before such due date, there shall be added
                to the amount due interest at the rate of twelve percent (12%) per
                annum from such date due until paid. Such interest and penalty shall
                become a part of the tax required to be remitted.

                It is a violation of this act for an operator to willfully fail or refuse to
                collect or remit the tax imposed by this act. Such willful failure or
                refusal shall subject the operator to a fine not to exceed fifty dollars
                ($50.00). The fine levied herein shall be applicable to each individual
                transaction involving an amusement taxable by this act when such
                operator willfully fails or refuses to collect or remit the tax payable
                to the county trustee.

        Although the Polk County privilege tax is not specifically imposed upon High Country, Polk
County looks to High Country for its payment and express liability for nonpayment of the tax to the
county trustee falls upon High Country and not the consumers upon whom the tax is imposed.
Therefore, we believe that High Country is subrogated to whatever remedy the consumer taxpayer
would have, just as the manufacturer was subrogated to the rights and remedies of the contractor in
Austin.

         Based upon the foregoing analysis, we hold that High Country does have standing to pursue
its claims in this case, and therefore, the trial court does have subject matter jurisdiction to hear such
claims. Accordingly, it is our determination that the trial court abused its discretion in granting Polk
County’s motion to alter or amend its prior summary judgment, and it is our further determination
that the trial court erred in granting Polk County’s motion to dismiss.

                              C. Maritime Transportation Security Act

       Having resolved the standing issue, we now consider whether the trial court properly granted
High Country summary judgment upon the ground that the county privilege tax was preempted by
33 U.S.C. § 5(b), which as amended by the MTSA, provides as follows:

                                                    11
                    (b) No taxes, tolls, operating charges, fees, or any other impositions
                    whatever shall be levied upon or collected from any vessel or other
                    water craft, or from its passengers or crew, by any non-Federal
                    interest, if the vessel or water craft is operating on any navigable
                    waters subject to the authority of the United States, or under the right
                    to freedom of navigation of those waters, except for
                     (1) fees charged under Section 22363 of this title; or
                     (2) reasonable fees charged on a fair and equitable basis that -
                         (A) are used solely to pay the cost of a service to the vessel or
                       water craft;
                         (B) enhances the safety and efficiency of interstate and foreign
                        commerce; and
                        (C) do not impose more than a small burden on interstate or
                        foreign commerce; or
                     (3) property taxes on vessels or watercraft, other than vessels or
                     watercraft that are primarily engaged in foreign commerce if those
                     taxes are permissible under the United States Constitution.

        The trial court’s order granting High Country summary judgment stated that, based upon
admissions by Polk County and a plain reading of the MTSA, Polk County’s privilege tax levied
after the November 2002 effective date of the MTSA did not meet any of the exceptions delineated
under the MTSA and therefore, the levy of the privilege tax after that date violated the MTSA and
the taxes paid under protest after that date should be refunded. Specifically, the trial court found that
while Polk County denied that the MTSA covers the Ocoee River, it admitted that the tax was not
used solely to pay the cost of a service to a vessel or water craft on the Ocoee River, “that the Ocoee
River meets the technical legal requirements to be classified as a navigable waterway, subject to the
authority of the United States for certain purposes,” and “that rafts are vessels or other water craft
as used within the [MTSA].”

        Polk County presents two arguments in urging us to vacate the trial court’s grant of summary
judgment. First, Polk County notes its denial that Ocoee River is a navigable waterway covered by
the MTSA and denies that rafts are vessels or water craft as those terms are used in 11 U.S.C. § 5(b).
Given these denials and the fact that the terms “navigable waters,” “vessel,” or “watercraft” are not
defined as implemented in 33 U.S.C. § 5(b), Polk County contends that it is unclear, and should not
be implied, that Congress intended to preempt the existing local privilege tax. Second, Polk County
argues that the MTSA does not contain express language preempting a non-federal tax already in
effect. We do not find merit in either of these arguments.

        As to Polk County’s argument based upon the MTSA’s failure to specifically define the
terms in question, we note the following courtroom statements of Polk County’s attorney and Polk
County’s response to request for admissions related to the definitions of such terms. First, Polk


        3
            The Water Resources Development Act of 1986.

                                                           12
County’s attorney’s statements in court in this regard were as follows:

                Polk County has taken the position . . . that the Ocoee River is a
                navigable water of the United States for certain purposes, but not for
                the purpose of this statute. The evidence that Mr. Conner alluded to
                is an affidavit from a manager of the Corps of Army Engineers that
                says the river is designated as a navigable waterway from its mouth
                up at the Ocoee River on the border to its link where it has the
                confluence with the Hiwassee River.

                So for TVA purposes or Corps of Army Engineer purposes, Polk
                County cannot contest that it’s a navigable waterway of the United
                States. What Polk County’s saying is for the purpose of this statute,
                it is not a navigable water of the United States.

                                                  ...

                Submit that Congress never intended for this statute to extend from
                New Orleans to the tributaries of the Ocoee River as they flow into
                the Hiwasee, the Tennessee, the Ohio, and the Mississippi. It cannot
                quarrel with an argument that a raft taking somebody down a rapids
                is a watercraft or a vessel. I think it is.

                I think a vessel or a watercraft is anything that is made by a human
                being to help carry somebody over water or cargo, so I have to admit
                it’s watercraft, the raft, even if it doesn’t have a motor on it; but
                there’s no definition in this statute about what’s a vessel or what’s a
                watercraft as well as a navigable waterway.

Further, Polk County’s response to requests for admissions included the following:

                REQUEST NO. 1: Admit that the Ocoee River in Polk County is a
                navigable waterway as it applies to 33 U.S.C. Section 5.

                RESPONSE: Polk County admits the Ocoee River meets the
                technical legal requirements to be classified as a navigable waterway,
                subject to the authority of the United States for certain purposes.
                Polk County denies that the Ocoee River is a navigable waterway as
                it applies to 33 U.S.C. Section 5.

        In its brief, Polk County asserts that it “admitted that a raft is a watercraft but not as defined
in the federal statute” and that “the Ocoee River [is] a navigable waterway for certain purposes but
not covered by the statute.” However, Polk County presents us with no argument as to what


                                                   13
alternative definition Congress intended that these two terms carry under the federal law. Further,
Polk County presents no argument as to why the Corps of Engineers’ and TVA’s definition of
“navigable waterway” and its own definition of “watercraft” would not be the appropriate definitions
of these terms for purposes of the Maritime Act. Accordingly, we are presented with no basis for
rejecting the trial court’s conclusion that the definitions of the terms admitted to by Polk County are
in fact the definition of the terms intended by Congress for purposes of the MTSA. It is a well-
settled rule of statutory construction that “[l]egislative intent and purpose is to be ascertained
primarily from the natural and ordinary meaning of the language used, without a forced or subtle
construction that would limit or extend the meaning of the language.” Saturn Corp. v. Johnson, 197
S.W.3d 273, 278 (Tenn. 2006); Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 107 (Tenn.
1996). We believe the definitions admitted by Polk County constitute the natural and ordinary
meaning of the terms “navigable waterway” and “watercraft” and Polk County has failed to support
an argument to the contrary.

        We now address Polk County’s argument that 33 U.S.C. § 5(b) as amended by the MTSA
does not apply to prohibit local legislation already in effect. We begin with the Supremacy Clause
of the United States Constitution which provides that state legislation shall be subordinate to federal
law, stating as follows:

               This Constitution, and the laws of the United States which shall be
               made in pursuance thereof; and all treaties made, or which shall be
               made, under the authority of the United States, shall be the supreme
               law of the land; and the judges in every state shall be bound thereby,
               any thing in the Constitution or laws of any state to the contrary
               notwithstanding.

U.S. Const. art. VI, § 1, cl. 2. Addressing the meaning of the Supremacy Clause in Perez v.
Campbell, 402 U.S. 637 (1971), the United States Supreme Court expounded as follows:

               As early as Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824), Chief
               Justice Marshall stated the governing principle – that “acts of the
               State Legislatures * * * (which) interfere with, or are contrary to the
               laws of Congress, made in pursuance of the constitution,” are invalid
               under the Supremacy Clause. Id., at 211. . . . Three decades ago Mr.
               Justice Black, after reviewing the precedents, wrote in a similar vein
               that, while “(t)his Court, in considering the validity of state laws in
               the light of treaties or federal laws touching the same subject, ha(d)
               made use of the following expressions: conflicting; contrary to;
               occupying the field; repugnance; difference; irreconcilability;
               inconsistency; violation; curtailment; and interference (,) * * * (i)n
               the final analysis, our function is to determine whether a challenged
               state statute stands as an obstacle to the accomplishment and
               execution of the full purposes and objectives of Congress.” Hines v.


                                                  14
               Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).

Id. at 649. Further, in Barnett Bank of Marion Co., N.A. v. Nelson, 517 U.S. 25, 32-33 (1996) the
United States Supreme Court noted appropriate considerations with respect to determining the pre-
emption question in those cases where the federal statute does not contain language showing that
Congress explicitly intended to preempt state law:

               Sometimes courts, when facing the pre-emption question, find
               language in the federal statute that reveals an explicit congressional
               intent to pre-empt state law. More often, explicit pre-emption
               language does not appear, or does not directly answer the question.
               In that event, courts must consider whether the federal statute’s
               “structure and purpose,” or nonspecific statutory language,
               nonetheless reveal a clear, but implicit, pre-emptive intent. A federal
               statute, for example, may create a scheme of federal regulation “so
               pervasive as to make reasonable the inference that Congress left no
               room for the States to supplement it.” Alternatively, federal law may
               be in “irreconcilable conflict” with state law. Compliance with both
               statutes, for example, may be a physical impossibility.

Id. at 31 (emphasis added) (citations omitted).

        It is beyond dispute that there is a manifest conflict between Polk County’s local privilege
tax which levies a tax on a consumer participating in rafting excursions on navigable waters in the
county and requires collection of the tax by the operator of such excursion, and 11 USC § 5(b),
which prohibits the levying and collection of a tax from any vessel or water craft operating on any
navigable waters subject to the authority of the United States or from its passengers or crew. The
conflict is “irreconcilable,” and compliance with both laws is “a physical impossibility.”

        In support of its argument that 11 U.S.C. § 5(b) should not be applied to prohibit preceding
local laws, Polk County cites wherein the court noted that “[c]onsideration under the Supremacy
Clause starts with the basic assumption that Congress did not intend to displace state law [and] in
the absence of express preemptive language, federal courts should be reluctant to infer pre-emption.”
United States v. Veasquez-Alvarez, 176 F.3d 1294, 1297 (10th Cir. 1999) (citations omitted). While
we recognize these tenets, we believe that the obvious and inescapable conflict between the local tax
and the federal prohibition overcomes the assumption against premption. Further, we find nothing
in the federal legislation that shows it to be a prohibition of prospective state legislation only, and
we find no reasonable basis for construing it to be so limited.

        In summary, we find Polk County’s well-presented arguments for reversal of the trial court’s
grant of summary judgment to be unpersuasive.

                          D. Disposition of Taxes Erroneously Collected


                                                  15
         The taxes at issue in this case were imposed upon, and collected from, a multitude of
unknown consumers, and any refunds of monies due as a result of our decision belong to these
consumers, not High Country and the other Operators. Accordingly, we direct that all such refund
amounts be held by Polk County pending claim by any of those consumers to which they belong and
that, if unclaimed after one year, any such amounts shall be assumed abandoned in accordance with
Tenn. Code Ann. § 66-29-1104 and shall be paid to the state treasurer for disposition in accordance
with Tenn. Code Ann. §§ 66-29-115 and 66-29-121.

                                                      IV. Conclusion

       For the foregoing reasons, the trial court’s summary judgment in favor of High Country is
affirmed, and the trial court’s orders granting Polk County’s motion to alter or amend such summary
judgment and motion to dismiss are reversed. Costs of appeal are assessed to Polk County, for
which execution may issue if necessary.



                                                           _________________________________________
                                                           SHARON G. LEE, SPECIAL JUDGE




          4
            Tennessee Code Annotated § 66-29-110 provides in pertinent part that “[a]ll property held for the owner by . . . a
political subdivision . . . that has remained unclaimed by the owner for more than one (1) year is presumed abandoned, except
property in the custody or control of any state or federal court in any pending action.”



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