ATTORNEY FOR PETITIONER:    ATTORNEYS FOR RESPONDENT:
Steven W. Handlon     KAREN M. FREEMAN-WILSON
HANDLON & HANDLON    ATTORNEY GENERAL OF INDIANA
Portage, IN    Indianapolis, IN
    
    JOEL SCHIFF
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN

_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

MEYER WASTE SYSTEMS, INC.,                                                )
an Indiana corporation d/b/a                                                   )
Able Disposal,                                                                 )
                                                                               )
    Petitioner,                                                                )
                                                                               )
    v.                                                                         )   Cause No. 45T10-9609-TA-124
                                                                               )
INDIANA DEPARTMENT OF                                                          )
STATE REVENUE,                                                                 )
                                                                               )
    Respondent.                                                                )    

I.C. § 13-30-2-1(4)-(6) (emphasis added). Meyer Waste has not provided nor has the Court found any authority to support Meyer Waste’s proposition that its customers’ placement of (abandonment of) non-hazardous garbage at the curb for pick up constitutes a violation of acceptable methods or rules prescribed by the solid waste management board. Moreover, Meyer Waste has not shown how an individual or business putting its garbage out for pick up by a garbage hauler is disposing of garbage in an unlawful manner within the limits of a public highway, state park, state nature preserve, recreation or in or near a lake or stream.
Meyer Waste also quotes a statute that prohibits the illegal dumping of waste onto another’s land. See Ind. Code Ann. § 13-30-3-13(d) (West 1998). That statute is inapplicable to this case because there are no allegations here that generators are placing their garbage out for pick up on the land of another. This case only raises the issue of the abandonment of garbage for pick up by a garbage hauler from one’s own land.
Finally, Meyer Waste quotes a statute that defines a nuisance, but does not state how its customers’ placement of garbage out for pick up constitutes a nuisance. See Ind. Code Ann. § 34-19-1-1 (West 2000). In addition, Meyer Waste does not cite any authority to support its assertion that placement of garbage in the proper containers for pick up by a garbage hauler constitutes a nuisance. See footnote Consequently, Meyer Waste’s argument that if a garbage generator abandons its garbage when it sets it out for pick up, it commits a criminal offense and therefore the generator could not have intended to abandon it, is without merit.See footnote

Ind. Admin. Code tit. 45, r 2.2-5-61(b) (1996) (emphasis added). In three prior cases this Court has held that “for consideration” means that someone other than the transporter must own the property being transported. National Serv-All, 644 N.E.2d at 956; Indiana Waste II, 644 N.E.2d at 961; Indiana Waste I, 633 N.E.2d at 367. If the carrier is not predominantly engaged in transporting the property of another, it is not entitled to the exemption. Indiana Waste II, 644 N.E.2d at 961; National Serv-All, 644 N.E.2d at 956. Nonetheless, Meyer Waste challenges the existing precedent by arguing that neither the phrase “for consideration” nor the phrase “for compensation” in the regulation requires that it transport the property of another. Meyer Waste argues that if the language in the regulation stated that the transportation must be “for hire” instead of “for consideration,” then the transporter would be required to transport the property of another. To support its argument, Meyer Waste cites to cases from other jurisdictions that distinguish between “for hire” and “for compensation.” See footnote (Pet’r Post-trial Br. at 41.) While it may be true that in some other jurisdictions one who transports its own goods and adds a transportation charge is deemed to have transported the goods “for compensation” or “for consideration,” that is not the law in the state of Indiana.
    Meyer Waste asserts that in both Indiana Waste I and National Serv-All this Court “erroneously read” State Department of Revenue v. Calcar Quarries, Inc. as standing for the rule that in order to be eligible for the public transportation exemption, the hauler must transport the property of another. See footnote (Pet’r Post-trial Br. at 47); State Department of Revenue v. Calcar Quarries, Inc., 182 Ind. App. 84, 394 N.E.2d 939 (1979); Indiana Waste I, 633 N.E.2d at 367; See footnote National Serv-All, 644 N.E.2d at 956. Meyer Waste contends that Calcar did not address the question of who owned the stone that was being transported on Calcar’s trucks. Moreover, Meyer Waste contends that the Indiana Court of Appeals implicitly held in Calcar that ownership of the property one is hauling is irrelevant for the purpose of determining whether the transportation is “for consideration.” (Pet’r Post-trial Br. at 43.) Calcar, 182 Ind. App. 84-88, 394 N.E.2d 939-41.
In Calcar, crushed stone was “sold at the Calcar Quarry Plant either to be delivered by trucks owned by others, or to be delivered by the Calcar trucks.” Calcar, 394 N.E.2d at 941 (emphasis added). Calcar’s hauling of property to its own job sites amounted to no more than 10 percent of its crushed stone sales. Id. In Calcar, the Court of Appeals did consider the issue of who owned the stone that was being transported. The State’s argument in Calcar was that “Calcar was not engaged in public transportation but instead was engaged primarily in the service of hauling its own product.” Id. Restated, this argument is that in order to be engaged in public transportation one must haul the product of another. In Calcar, the Court of Appeals held that Calcar transported property for consideration and satisfied the definition of public transportation. Id.
When the facts of Calcar are analyzed, it can be reasonably interpreted as holding that to be engaged in public transportation one must haul the property of another. The facts clearly state that the stone was sold at Calcar’s Plant, not at the purchasers chosen delivery location. As such, the purchaser became the owner at the time of sale and could pay Calcar to haul its stone or arrange for another hauler to transport it. This interpretation is furthered by the fact that “Calcar sold its products F.O.B. Calcar’s plant.” See footnote Id. Meyer Waste incorrectly states that in Calcar F.O.B. meant “that the seller of goods bears the expense and risk of loss for the delivery of goods to a buyer – i.e., that the seller retains titled [sic] during delivery.” (Pet’r Post-trial Br. at 44, n.13.) (emphasis added). In Calcar the Court of Appeals noted that “when the term is F.O.B. the place of shipment, the seller must at that place ship the goods in the manner provided in this article [chapter] (section [26-1-]2-504) and bear the expense and risk of putting them into the possession of the carrier.” Calcar, 394 N.E.2d at 941 n.2. In such a situation, title to the goods passes from the seller to the buyer at the point of shipment. See Weil v. Stone, 33 Ind. App. 112, 115, 118, 69 N.E. 698, 699, 700 (1904) (holding where contract provided for sale of goods F.O.B. Fort Wayne, Indiana, the title to the goods passed to the buyer at shipment from Fort Wayne); Cf. Gross Income Tax Division v. Shane Mfg. Co., 191 N.E.2d 310, 311, 312 (Ind. 1963) (stating that where all shipments were F.O.B. the seller’s plant at Evansville, Indiana title was transferred to the buyer at the seller’s plant in Evansville when seller delivered goods to the buyer’s trucks). Consequently, it appears that the title to the stone passed once the stone was given to the carrier for shipment. See id. Because Calcar ran its delivery business separate from its quarry, asphalt, and ready mix operation it appears that it acted separately as a carrier. See footnote Therefore, it is evident that when Calcar hauled the stone to the customers it was hauling the property of another because title had already passed to the customer.
Even assuming arguendo that Calcar was carrying its own property, the only reasonable reading of Ind. Admin. Code tit. 45, r 2.2-5-61(b) (1996) is that “for consideration” and “for compensation” mean that the transportation must be of another’s property. Otherwise a purchaser would be paying to have someone else’s property hauled. It is rare that in the ordinary course of business the purchaser would pay for the seller to haul the seller’s own property. However, this is not to say that there are not occasions where pursuant to a contract, a party might pay for the shipping before the title actually passes to it.
This Court reaffirms its holdings in Indiana Waste I, Indiana Waste II, and National Serv-All that in order to qualify for the transportation exemption to the use tax, one must haul the property of another. Consequently, Meyer Waste’s argument that it qualified for the exemption despite the fact that it hauls garbage that it owns cannot prevail.