* The Honorable Joseph M. Hood, United States Distr ict Judge for the

Eastern District

of Kentucky, sit

ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0131P (6th C ir.) File Name: 04a01 31p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ A MMEX , I

NC ., Plaintiff- Appellant
,

v.

U NITED S TAT ES OF A MERICA ; I NTER NAL R EVENUE S ERVICE , Defenda nts-Appe llees. X - - - -> , - - - - N No. 02-2375

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 00-73388—George C. Steeh, District Judge.

Argued: March 12, 2004 Decided and Filed: May

6, 2004
Befor e: MERRITT and DA

UGHTREY , Circuit Jud

ges; HOOD, District Judge. * 2 Ammex, Inc. v. U nited State

s, et al. No. 02-2375

_________________ COUNSEL
ARGUED: Craig L . John, DYKE MAGOSSE, Bl oomfield Hills, Michigan, for

Appellant. Teresa E. McLa ughlin, U . S. DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees

. ON BR IEF: Craig L. John, Mark H. Sutton, Christopher

S. Olson, DYKEMA GOSSE, Bloomfie ld Hills, Mich igan, for Appellant. Teresa E. McL aughlin, U. S

. DEPARTMENT OF JUSTICE, Washington, D.C., Judith A. Ha gl ey, U. S. DEPARTMENT OF JUSTICE, TAX DIVISI ON, Washin

gton, D. C., for Ap

pellees

. HOOD, D. J., delivered

the opinion of the c ourt, in which DAUGHTREY, J., joined. MERRITT, J. (pp. 11-12), delivered a separate concur ring opinion.

_________________ OPINION

_________________ HOOD, Distri ct Ju dge. Plaintiff-Appellant, Ammex, Inc. (“Ammex”) sued the U n ited States to recover motor fuel excisetaxes alle gedly

collecte d in

violation of, inter alia, the Export Clause of

the Unite d States Con st itution . Ammex
now appeals

the distri ct court ’s order granti ng DefendantsAppellee s’ motion for summary judgment on the basis of lack of standing. For

the reasons set forth below, we AFFIRM the judgmen t of the district cou

rt.
I. FACTUAL AND PROCEDURAL HISTORY
Ammex operates a “sterile”U.S. Customs Class 9 bonded warehouse, commo nl y k no wn as a d ut y-f re e s to re , o r d ut yfree sales enterp ri se, in Detroit, Michigan. The designation ”sterile” means that the phy sical design and operation of the facility guara ntee the exportation of produ

cts sold therein. The store is located

on West L afay

ette Street adjacent to theNo. 02-2375 Ammex, Inc. v. U nited State

s, et al. 3

Ambassa dorB ridge, which connects the United States and Canada. Customers

enterin g Ammex’s

facility ha ve ne cessar ily proceeded bey

ond the “point of no retur n” an d must exit the

United Sta

tes.
As a duty-free sales en terprise , Ammex is pe

rmitted to sell for export ce rtain goods “duty- free.” These duty-f ree goods are sold to customers who transport them dire ctly

to Canada after leaving Ammex’s stor

e. At i ssue in the district court
casewas whether

Ammex could sell gasoline and diesel fuel on a duty -free basis.
Ammex purchased the fuel in question with the intention of selling it for export from

its duty-free store . This store has an Automatic

Tan kGauging system, whereby its daily fuel needs are aut

omatica lly r

ecorde d and tra

nsmitted to

its purchasingagent, Fleet Fuel, L LC (“Fle et Fu el”). Based on t he data received from that sy stem, Fleet Fuel prepar

e s purchase orders on behalf of Ammex. During the periods at issue, Ammex purchased both gasoline and diesel fuel from several local sup

pliers, in cluding BP Oil Co ., A tlas Oil Co., Viking Oil, Peerless Distributing Co., and Mooney Oil Co.
Becau se of the duty-fr

ee nature of i ts op erations, Ammex requested to purchase the fuel free of fe deral excise tax. The suppl ie rs, however, as a condition of Ammex’s purchase of the fuel, required pay

ment of fede ral excise taxes at the

time of purchase. Thes e tax es were imposed at the time the fuel
was removed from the fu el te rminal, known as the terminal rack, for delivery to Ammex’s duty -free store. This practice is consistent with I.R.C. § 4081, which places the leg al incidence of the excise tax at this point in the chain of sales transactions. After removing the fuel from the terminal rack, third-pa rty carriers delivered the

fu el directly to Ammex’s duty-free facility and unloa

ded it into A

mm ex’ s fuel dispensing tanks. Ammex’s purchasing ag ent remitted payment fo r t he fu el wi th in te n d ays of its deliver y to Ammex’s fuel storage facility . After delivery , Am m ex sold 4 Ammex, Inc. v. U nited State

s, et al. No. 02-2375

the fuel to customers who were necessarily required to take it into Canada.
The Export Clau se of the United States Constitution prohibits the imposition of any feder al tax on duty-free merch andise. This const

itutional proscrip tion is c onfirmed b y federalcustoms law. See, 19 U.S.C. § 1555(b)(3)(C), (8)(E). Ammex also cite s to sever al p rov isions of the Internal Revenue Code in sup

port of its cla im for a refund of the tax paid on the gasoline and diesel fuel at issue.
Inpart, Ammex relies on a lette r ruling it received from the U.S. Customs Service Port Director for D etr oit dated September

5, 2000. I

n that lett

er, Ammex was granted permissionto expand its Class 9 d uty -free wareho use operation to include the sale of

gasoline and diesel fuel. That letter ruling, however, was revoked in a notice -and-comment ruling let ter and explanatory note dated November 1, 2001. The basis of the revocation was that only fuel on which neither duty nor tax has been assesse d can qualify a s duty-free fuel under 19 U.S.C. § 1555(b )(8)(E), and the fuel sold by Ammex had been assessed a fede ral excise tax. Customs was enjoined from effectua

ti ng its revocation because of a temporary

restrai ning order (“TRO”) issued by Court of International

Trade Judge Evan J . W allach on January 23, 2002. Th at TR O w as su bs eq ue nt ly d is solv ed by Jud ge Wallach on February

22, 2002.
A sserting that taxation of the fuel violated the Expo r t Clauseof the Constitution, Ammex made refundclaims wit h respect to gasoline and diesel fuel for each of the tax periods at issue. The total refun d reques ted was $647,494 plus interest

. The I

RS disallow ed Plaintif

f’s cla ims for two
reasons : first, Plaintiff did not establish thatthe gasoline and diesel fuel sold

constitute d export sa

les, and second, Ammex did not establish thatit

was the proper party

to seek a refund.
OnF e bruary

3, 2000, A

mmex filed it s complain

t again st the United States and the Internal Reve nue Service, seekingNo. 02-2375 Ammex, Inc. v. U nited State

s, et al. 5

recovery of fuel tax of $647,4 94.00, plu s interest for qua rterly tax periods ending March 31, 1999, and June 30 , 1999. Ammex based its claims on the Export Clause of the United States Constitution, art. I, § 9, cl. 5, and I.R.C. §§ 4221, 6421, and 6427.
OnNovember 19, 20 01, Ammex filed a motion for summary judgmen t. On Nove

mber 20, 2 001, th e Gove rnment fil ed its own motion for summary judgment. The distri c t court heard the cross-motions for summary judgment on February 7, 2002. O n July

31, 2002, the district court granted the Government’s motion for summary judgme

nt and denied Ammex’s, holding that Ammex lacke d standing to seek a refund of fuel taxes because it could not establish “an injury infact ca used by defenda

nt.” The court did not reach the merits of the Export Cl ause cla

im. Judgment was entered on August 1, 2002.
OnAugust 14, 2002, Ammex filed a motion for reconsideration; the motion was denie d by the distri ct cour t on October 22, 2002. The instant appeal followed.

II. STANDA

RD OF RE VIEW
This Court reviews a district court ’s grant of summary judgment de novo

. See Upsher v. Grosse Poi nte Publ ic School System, 285 F.3d 448, 451, (6th Cir. 2002). The constitutional and

statutory interpre tation issu

es prese nted in this case are questions of law, also subject to de novo review. See Johnson v. Economic Dev. Corp., 241 F.3d 5 01, 509 (6 th Cir. 2001). 6 Ammex, Inc. v. U nited State

s, et al. No. 02-2375

III. DISCU SSION
A. Standing under

the Export

Clause
The “case or controversy ” limitation of Article II

I of the Constitution requires that “a federal cour t act only to redre ss injury that fairly ca

n be traced

to the challenged action

of the defenda nt, andnot injury that results from the independe nt actionof some third party not bef ore the Court.” Simon v. E. Ky. Welfare Rights Org., 426 U .S. 26, 41-42 (1976). The district court’s conclusion that Ammex had no standing was based, in part, upon the fa c t that it was not the Government that collecte d the tax fr

om Plainti ff

, but rather Plaintiff’s supplier s. In other word s, it was the acti on o f a third p arty (the supplier s), as opp osed to th e Defendant (the Go ve rn me nt ), th at ca us ed Pl ai nt if f’ s a ll eg ed in

ju ry.
Inorder to

satisfy the stand

ing req uirement s imposed by Article II I of the United States Constitution,
A plaintiff

must have

suffer ed some actual or threatened injury due to the allege d illega

l conduct of the de fendant ; the injury must be ‘fairly traceable’ to the challenge d action; and ther

e must be a substantial likelihood that the relief requested will redress or prevent the plaintiff’s in ju ry. Coyne v. Ameri

c a n Tobacco Company, 183 F.3d 488, 494 (6thCir. 1999) (citi ng Valley Forge Christian Colleg e v

. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982)). Plaintiff claims that (1) it suffered an economic injury in fa ct by the Gover nment’s imposition of the challenged excise tax, (2) since the Government imposed this tax, its injury is fairly traceable to the Governmen t, and (3) by reimbursing

Ammex for the taxes pa

id, its injury

will be redressed.
Alth ough the Government did impose an excise tax on the fuel that Ammex purchased and later sold at its “duty-fr e eNo. 02-2375 Ammex, Inc. v. U nited State

s, et al. 7

1 The tax was impo sed on Amme x’ s s uppl ier s pu rsu ant to 2 6 U.S. C. § 408 1(a)(1)(A )(ii) because it was t he suppli ers t

hat re moved taxable fuel from the term inal. facility,” that tax was not assessed against Ammex. Instead, the tax was imposed on A mmex’s suppliers who, in turn, added the amount of

the tax to the wholesale price of the fuel Ammex purchased. 1 As noted by the district court, “T he tax burde nat issue here is that of Ammex’s suppliers, and no t Amme x. ” The refore, Ammex did not pay the c hallenged excise t ax to the Government (nor wa s such a ta

x assesse d againstit), but instead paid a tax-include d price to its supplier s. It was in the discretion of Ammex ’s suppli ers to charge Ammex for

the chal lenged

tax amount. Co ns eq ue nt ly, any alleged injury

suffered by Plaintiff in the form of increa sed fuel

costs was

not occa sioned by

the Gove rnment.
It is di fficult to see how, “[i]f the defendant did not lay , assess, exact, o rotherwise collect from plaintiff any federal excisetaxes on the gasoline and diesel fuel during the periods at issue...,” Plaintiff can proceed under this theory

. Ammex Inc. v. United States, No. 99-338T (Court of Feder al Claims, April10, 2002) at p. 12. Without an injury-in-fact, ca used by the Government, we hold that Ammex does not have standing to pursue its claim based on the Export Clause.
B. Fuel Sold “For Export”
26 U.S.C. § 6421(c) provides that if gasoline is sold to any person for cer tain exempt purposes set forth in § 4221(a)(2)- (5) , such person is to be paid an a

mount equa

l to the tax without in terest. As relevant here, § 4221(a)(2) lists as an exempt purpose, a sale “for export, o r fo r resale by the purchaser to a second purchaser for export.” The dist

ri ct court determined that Ammex was not e ntitled to recover pay ments under

§ 6421(c) because, according to longstanding 8 Ammex, Inc. v. U nited State

s, et al. No. 02-2375

2 The d ist

ric t cou rt parti all y re li ed on Reve nue Rul ing 69-150 , spec ifically holdi ng that it was e nti tl ed to Ch e vron defer ence . W hile Chevron deferenc e may not be t he appropriat e levelof defer ence to whi ch
revenue rul ing s ar e ent it led, Ruli ng 69- 150 is a long -standin g and highly per suasive preced ent. Reason able agen cy interpretations carry “at least
some added persuasi ve force” where Chevron is i napplicabl e. Metropol itan Stev edore Co. v. Rambo, 521 U.S . 121 , 136 (19 97)

. administrative practice, 2 the fuel sold by Ammex was not sold for export within the meaning of the statute.
Becau se the excise tax provisions of the Code do not

define “export,” extrinsic aids for c onstruction ma y be relied on in interpretingthe meaning of export for purposes of § 6421(c) and § 4221(a)(2). For more

than 30 years, the IRS has taken the position that delivery of fuel into the fue l sup ply tank of
a motor vehicle is use of that fue l, a nd that the subsequent movement

of the vehicle i nto a f

oreign country

does not constitute exportation of that fuel for purposes of motor

fuel excise taxes. Revenue Ruling 69-150.
Whether or not Chevron deferenceis appropriately applied here, obviously

some leve l of defe

rence t o the agency

ruling is due. As the Supreme Court pointed out in United States v. Mead Corp., 533 U.S. 218, 234 (2001), even though an agency ’s interpretation is not entitled to Chevron d ef erence, suchan interpretation

may merit some defe

rence whateve

r its form, given the specialized e xperience, br oader investigations and information available to the agency , and given

the value of unifor mity in i ts adm inis trati ve and judi cial u nders tandi ngs of what national law requires. I ndeed, the Court

i n Mead reaffirmed

the holding of Skidmore v. Swift & Co., 323 U.S. 134 (1944), that “[t]he weight [accorded to an administrative] judgment in a particu lar ca se will depend upon the thoroug hness evident i

n its consid

eration , the vali dit

y o f its
r eason ing, its consi stency with earlier and

late r pronounc ements, and all those factors which give it power to persuade, if

lacking power to control.” Mead, 533 U.S. at 228 (quot ing Skidmore , 323 U.S at 140).No. 02-2375 Ammex, Inc. v. U nited State

s, et al. 9

3 In Aero quip-V ickers , thi s Court revers ed the Tax Co urt’s failure to defer to a rev enue rul ing, holding that the Tax Court h ad “misch aracter ized the degr ee of d eferen ce ac cord ed to reven ue ruling s...” Aero quip-V ickers, Inc. C om missio ner, No. 01-2741 (Oc t. 20, 2 003 ). Th is Court st ated th at the reven ue ru li ng at

is sue w as not

ent it led t o Chevron deference

. Id. Howeve r, by examining t he factors set

out in Skidmore, the Court co ncluded that “s ome def erenc e to R even ue R ul[ing] 8 2-20 is proper.” Id. at 14

. Considerationof the abov e factors dictat es that a t least
some level of deferenc e i s due Revenue Ruling 69-150. 3 Revenue rulings are written and reviewed at the same level of the IRS and the Treasury Department as ar e Treasury regula tions, demonstrating that a “central board or of fice” accords a grea

t “ degree of ...care ” to their issuance. Mead, 533 U.S. at 228, 236. Of course, the IRS possesses “relative expertne ss” in the application of the Code to

particu lar facts, given the technical comple xity of federal tax law. See id. Ad di ti on al ly, the fact that the IRS has left Revenue Ruling 69-159 virtually uncha nge d for over three decades demons trate s the soundness of the decision there made. Fi na ll y, A mme x has faile d to identif y a ny i nfirmity in this longstandingand sensi

ble i nterpretation of the statutory scheme.
Giventhe logi cal and l ong-stand ing agency interpretation of a statue by the de

partment charg ed with

its administration,
we believe Revenue Ruling 69-150 has thepower to persuade and should be followed in a case such as this. Hence, we conclude that the district court did not err in holding that the fuel sold by Ammex

was not “ for expor

t” within the meaning of § 4221(a)(2) and § 6421(c).
C. Ammex as an “Exporter”
I.R.C

. § 6416(c) allows an exporter of motor fuel to recover
anillegally c ollected tax

. The district court found that Amme x, a duty

-free sales en terprise , was not a

n exporter

but, instead a retailer that facilitated exportation by the individual 10 Ammex, Inc. v. U nited State

s, et al. No. 02-2375

retail cu st om er s w ho de pa rt ed th e c ou nt ry. Ammex submits that its status a s a “duty

-free sales en terprise ” means t

hat, altho ugh it is not a c arrier of fuel in

to Canada, it must be considered

an “expo rter” b ecause its “sole b

usiness is
ar ranging for merc handise t o be sent t

o Canada by s elling it for assured exportation.”
The definition of “duty-fr ee sales enterprise”

demonstrates that Ammex is not an e xpo rter. Congress has defined a “duty-fre e sales en

te rpr ise” to mean “a person that sells, for
use outside the customs territory, duty -free merchandise that is delivered

from a bonded warehouse to an airport or other exit point for exportation by, or on behalf of , indivi dual s departingthe customs territory.” 19 U.S.C § 1555(b)(8)(D);
see als o 1 9 C .F .R . § 19 .3 5( a) (“ A c la ss 9 w ar eh ou se (d ut yfree store) may be established f or exportation of cond

itionally duty-free merchandise by

individuals...”). According

to the definition, a duty-fre e store doe s not itself export, but rathe

r sells duty-free

goods for export by someone else (i.e., a customer). Thus, Ammex’s assertion that it is an “exporter” is belied by the definition itself. The district court
correctly held that Ammex was not an “exporter” under 26 U.S.C. § 6416(c).
D. Constitutionality of I.R.C. § 4081
Becau se Ammex lacks standing to raise the Export Claus e claim, thi s Court need not d ecide w hether § 4081 is unconstitutional with respect to fuel sold to a dut y-f ree enterprise.
IV. CONCL USION
For the above mentione d re asons, we AFFIRM the judgmen t of the district cou

rt.No. 02-2375 Ammex, Inc. v. U nited State

s, et al. 11

_________________ CONCURRENCE

_________________ MERRI TT, Circuit Judge, concurring. Although I agree with the result reached in the majority opinion, I have serious doubts about the conclusion that Ammex does not have standin g to bring this claim under the Export Clause of t h e Constitution. It seems to me t hat fo r the p urpos es of s tandi ng, Ammex alleg es an injury that is fairly traceable to the Government. The fa ct that Ammex paid the tax to the wholesaler

rather than to the Government does not mean that the higher price it paid cannot be eas ily traced to the Government’s impos itio n of the tax for the purposes of stand ing. If the gas we re sold by

Ammex in a se

parate container and not

mixed with the gas in the purchaser’s tank before en tr y i nto Canada, it would presumably c ount as an “export” and there would be no question that Ammex has stan ding. I do not think that standing should turn on issues that go to the merits of

the claim like the question of whether the gas is mixed in the fuel tank or so ld in a sep arate container. Moreover, I

do not understand how we can reach the merits of

the statut

ory claim — im

plicit ly holding that when pursued t

hrough that ave

nue the in

jury is fairly tracea ble to the G overnment — yet hold that Ar ticle III’s standing requir

ements prevent us from h earing a constitutional claim for

the same injury caused i n exactly the
same way . This see

ms a distinction without a difference that should not encumber t

he con stitutiona

l law of st

anding to litigate.
As for the merits of the Constitutional clai m, I would interpret the meaning of “export” in the Constitution the same way th e m aj or it y i n terprets it for the statutory claim, and uphold the judgment on thos e grounds. Ammex is not an “exporter” under the Constitution anymore than it is under the statute. When it pours gas into the tank o f a car , mix ing it with what is the

re, it is no mo re of an exporter than the gas 12 Ammex, Inc. v. U nited State

s, et al. No. 02-2375

station whic h does the same thing a few blocks before reaching the bridge.