546US1
Unit: $U11
[08-22-08 15:19:52] PAGES PGT: OPIN
Cite as: 546 U. S. 95 (2005)
103
Opinion of the Court
to a “fair interpretation of the taxing statute as written and applied,” California Bd. of Equalization v. Chemehuevi Tribe, 474 U. S. 9, 11 (1985) (per curiam), we would nonethe less conclude that the legal incidence of the tax is on the distributor. Kansas law makes clear that it is the distributor, rather than the retailer, that is liable to pay the motor fuel tax. Section 79–3410(a) (1997) provides, in relevant part, that “[e]very distributor . . . shall compute and shall pay to the director . . . the amount of [motor fuel] taxes due to the state.” While the distributors are “entitled” to pass along the cost of the tax to downstream purchasers, see § 79–3409 (2003 Cum. Supp.), they are not required to do so. In sum, the legal incidence of the Kansas motor fuel tax is on the distributor. The lower courts reached the same conclusion. 379 F. 3d, at 982 (“The Kansas legislature structured the tax so that its legal incidence is placed on non-Indian distribu tors”); 241 F. Supp. 2d, at 1311 (“[I]t is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors”); see also Sac and Fox Nation of Missouri v. Pierce, 213 F. 3d 566, 578 (CA10 2000) (“[T]he legal inci dence of the [Kansas] tax law as presently written falls on the fuel distributors rather than on the Tribes”); Winnebago Tribe of Nebraska v. Kline, 297 F. Supp. 2d 1291, 1294 (Kan. 2004) (“Under the Kansas statutory scheme, the legal inci dence of the state’s fuel tax falls on the ‘distributor of first receipt’ of such fuel”); Sac and Fox Nation of Missouri v. LaFaver, 31 F. Supp. 2d 1298, 1307 (Kan. 1998) (“[T]he stat utes are extremely clear in providing that the tax in question is imposed upon the distributor”). And the Kansas Depart ment of Revenue, the state agency charged with administer ing the motor fuel tax, has concluded likewise. See Letter from David J. Heinemann, Office of Administrative Appeals, to Mark A. Burghart, Written Final Determination in Re quest for Informal Conference for Reconsideration of Agency Action, Davies Oil Co., Inc., Docket No. 01–970 (Jan. 3, 2002)
