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IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax DONALD W. TRUE, Plaintiff, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Defendant. ) ) ) ) ) ) ) ) ) )

TC-MD 030024F

DECISION

Plaintiff appeals Defendant's tax assessment for tax year 2000. A trial was held in Portland on July 30, 2003. Scott Kamin represented Plaintiff. Amy Stalnaker appeared for Defendant. Plaintiff asserts that his income, although earned in Oregon, is exempt from state income tax under Public Law 101-322, the Amtrak Reauthorization and Improvement Act of 1990 (Amtrak Act). I. STATEMENT OF FACTS Plaintiff is a resident of Vancouver, Washington. For a number of years, including the year at issue, Plaintiff has been employed as a City Driver/Dock Worker (Combination) for Yellow Freight Corporation (Yellow Freight). Yellow Freight is a less than truckload intrastate and interstate carrier. (Ptf's Ex 2.) Plaintiff is based at the Portland distribution center. Yellow Freight's trucks will deliver any place within 50 miles of the Portland distribution center. Plaintiff is one of 80 to 90 City Driver/Dock Workers (Combination) who is based at the Portland distribution center. Approximately 50 of those employees drive one of 35 routes or are overflow drivers. Five of the 35 routes travel to the state of Washington. The

DECISION TC-MD 030024F

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30 to 40 remaining City Driver/Dock Workers (Combination) work primarily on the dock. The City Driver/Dock Workers (Combination) bid annually on whether they are primarily drivers or dock workers. The individual routes are bid on as well. An employee who is employed as a City Driver/Dock Worker (Combination) must be qualified, ready, and able to perform the entire spectrum of duties at all times. The position summary for City Driver/Dock Worker (Combination) states that the employee must be able to "[l]oad, unload and move materials within or near terminal, yard or worksite, performing a combination of duties under general supervision. Drive truck to transport materials to and from specified destinations." (Ptf's Ex 5 at 3.) Plaintiff testified that even though he works primarily on the dock, he will not be permitted to work any particular day if he is not legally and physically able to perform all of the duties of a City Driver/Dock Worker (Combination) on that day. Thus, all City Driver/Dock Worker (Combination) employees must maintain a commercial driver's license (CDL). On Plaintiff's CDL, he has a hazardous materials endorsement as well as a double/triple endorsement. Although Plaintiff holds a dock bid, and works primarily on the dock, he drives occasionally as well. When there is a backlog of freight to be delivered he is more likely to drive, such as the day after a holiday or when he is called in to work a sixth or seventh day in a week. He testified that of the employees who work primarily on the dock, some drive every day. He further testified that he sometimes drives two times in a week, while at other times he may not drive for two weeks. He drives in Washington in approximate proportion to the number of routes in Washington compared to the number of routes overall. Accordingly, he drives in Washington approximately one seventh

DECISION TC-MD 030024F

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of the times that he drives.1 Accepting Plaintiff's testimony that he typically drives three to four times a month means that he drives in Washington approximately five to seven times per year. Consistent with that expectation, Plaintiff drove in Washington seven times in the year 2000 and five times in the year 2002.2 (See Ptf's Exs 3 and 4.) II. ANALYSIS The Amtrak Act exempts from state taxation, by any state other than the taxpayer's state of residence, the wages of employees who perform regularly assigned duties in two or more states, when their duties directly affect commercial motor vehicle safety in the course of their employment. See Amtrak Reauthorization and Improvement Act of 1990, Pub L No 101-322 (1990). The pertinent portion of the Amtrak Act, found in Title 49 of the United States Code, reads: "(1) No part of the compensation paid by a motor carrier providing transportation * * * to an employee who performs regularly assigned duties in 2 or more States as such an employee with respect to a motor vehicle shall be subject to the income tax laws of any State or subdivision of that State, other than the State or subdivision thereof of the employee's residence. "(2) In this subsection, the term 'employee' has the meaning given such term in section 31132." 49 USC

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