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Amicus Briefs

Amicus BriefCourtIssueConclusion
2021
Hegar v. Texas Entertainment Ass’n, Inc.U.S. Supreme Court, on Petition for Writ of Certiorari to the Fifth Circuit

No. 21-1258
Asking the Court to take the case in order to provide certainty for when the Tax Injunction Act applies to remove matters of state taxation from federal court jurisdiction. (Filed on behalf of the MTC and FTA.)Petition denied.
VAS Holdings and Investments LLC v. Commissioner of RevenueMassachusetts Supreme Judicial

Court No. SJC-13139
One question is whether it violates the U.S. Constitution or state law for the state to impose tax on the gain from the sale of a partnership doing business in the state using the operations of the partnership to source that gain. A second issue is whether the tax is in accordance with state statutes.Resolved in favor of the taxpayer on the state law question. 
Santa Fe Natural Tobacco Co. v. Dept. of RevenueOregon Tax Court, Regular Division
 
No. 5372
Whether P.L. 86-272 preempts the state from taxing income of a seller who has wholesalers in the state that accept returns on behalf of the seller and also takes “pre-book” orders in the state. The Tax Court ruled in favor of the state. The case is pending appeal.
Idaho State Tax Commission v. Noell Industries, Inc.U.S. Supreme Court, on Petition for Writ of Certiorari to the Idaho Supreme Court

No. 20-947
Whether a holding company that owns a controlling interest in an LLC that has operated in Idaho and has reported tax on income apportioned to Idaho can, nevertheless, treat the gain from the sale of the interest as non-business, non-unitary income. Petition denied.
2018
Alabama Department of Revenue
v.
CSX Transportation, Inc. (on petition)

 
U.S. Supreme Court, on Petition for Writ of Certiorari to the Eleventh Circuit

No. 18-447
Under 49 U.S.C. § 11501(b)(4) (the “4-R Act”), when can a state justifiably maintain a sales-and-use tax exemption for fuel used by vessels to transport goods interstate without extending the same exemption to rail carriers?Petition denied.
Franchise Tax Board of the State of California
v.
Gilbert P. Hyatt
U.S. Supreme Court, on Writ of Certiorari to the Nevada Supreme Court
 
No. 17-1299
Whether a state can assert its sovereign immunity against a suit brought in another state’s court, in this case involving a tax matter, and whether Nevada v. Hall should be overturned. (A prior Supreme Court challenge ended in a 4-4 split.)Resolved in favor of the state. Nevada v. Hall overturned. Held:  States retain their sovereign immunity from private suits brought in courts of other states.
Department of Revenue of the State of Colorado
v.
Oracle Corporation and Subsidiaries
Colorado Supreme Court
 
No. 2018SC3
First: Whether a holding company that has no foreign property, payroll, or operations is exempt from Colorado taxation under the “Water’s Edge” exemption (§39-22-303(8), (12)(c)).

Second: Whether section 39-22-303(6) authorizes the revenue department to allocate a domestic holding company’s income to its corporate parent to “clearly reflect” the parent’s income and “avoid abuse.”
Resolved in favor of the taxpayer. 
Franchise Tax Board of the State Of California
v.
Gilbert P. Hyatt
 (on petition)
U.S. Supreme Court, on Petition for Writ of Certiorari to the Nevada Supreme Court
 
No. 17-1299
Whether a state can assert its sovereign immunity against a suit brought in another state’s court and whether Nevada v. Hall should be overturned. (A prior Supreme Court challenge ended in a 4-4 split.)Petition granted.
South Dakota
v.
Wayfair, Inc.
U.S. Supreme Court, on Writ of Certiorari to the South Dakota Supreme Court
 
No. 17-494
Whether the court should uphold South Dakota’s remote-seller use tax collection statute, overturning Quill v. North Dakota and permitting states to adopt workable nexus standards for imposing sales and use tax collection requirements.Resolved in favor of the state: Held: Quill is overturned and states may impose a sales and use tax collection requirement on remote sellers.
Robert C. Steiner & Wendy
Steiner-Reed
v.
Utah State Tax Commission
Utah Supreme Court

Case No. 20180223-SC
Whether state law or the dormant commerce clause requires Utah to allow its residents to apportion their income or provide a credit against their Utah tax for any foreign national and substantial taxes paid.  Resolved in favor of the state. Held: Neither state law nor the dormant commerce clause requires Utah to allow apportionment or grant a credit.
Washington State Department of Licensing
v.
Cougar Den, Inc.
U.S. Supreme Court, on Writ of Certiorari to the Supreme Court of Washington
 
No. 16-1498
Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.Resolved in favor of Cougar Den. Held in a plurality opinion: The 1855 treaty between the U.S. and the Yakama Nation preempts Washington state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway.
2017
Commissioner of Revenue of Minnesota
v.
Associated Bank

 
Minnesota Supreme Court
 
No. A17-0923
Whether the Commissioner can use alternative apportionment authority to apply financial institution allocation rules to allocate the income of LLCs that are not financial institutions but are owned by a financial institution.Resolved in favor of the state: Held: The Commissioner properly invoked her alternative apportionment authority under Minn. Stat. 290.20(1) to  fairly reflect the income of Associated Bank, N.A. and its affiliates.
CSX Transportation, Inc.v.
Alabama Department of Revenue et al.
Eleventh Circuit
 
No. 17-11705-G
Whether the “another tax that discriminates” provision of 49 U.S.C. § 11501(b)(4) (the “4-R Act”) preempts a state from granting a sales tax exemption to truckers that pay fuel taxes, and also exempts fuel purchased by water carriers, while imposing the sales tax on railroads. (This case was before the Eleventh Circuit twice before.)Resolved in favor of the taxpayer. Held: Alabama’s tax on railroads is preempted because it discriminates vis-a-vis water carriers (but not truckers). 
Graphic Packaging Corporation
v.
Glenn Hegar, Comptroller of Public Accounts of the State of Texas
Texas Supreme Court 
 
No. 15-0669
This is a Compact case (see Gillette).  Resolved in favor of the state. Held: By its terms, Texas Code Section 171.106 is the exclusive apportionment formula. Nothing in the Compact prohibits states from adopting an exclusive apportionment method that overrides the Compact’s formula.
Utah State Tax Commission
v.
See’s Candies, Inc.
Utah Supreme Court
 
No. 20160910-SC
Can Utah use its statutory authority, similar to IRC § 482, to disallow intercompany deductions for amounts paid by a retailer to a related entity to use intangible property transferred by that retailer to that related entity.Resolved in favor of the taxpayer. Held: Because the Utah statute was modeled on its federal counterpart, the Commission must look to federal regulations, which the Court concluded would not allow the deductions to be disallowed.
South Dakota
v.
Wayfair, Inc. (on petition)
U.S. Supreme Court, on Petition for Writ of Certiorari to the South Dakota Supreme Court 
 
No. 17-494
Whether the court should grant certiorari to consider whether Quill v. North Dakota should be overturned.Petition granted.
2016
Avnet, Inc.
v.
Washington Department of Revenue
Washington Supreme Court
 
No. 92080-0
Whether the dormant commerce clause doctrine of dissociation prevents Washington from applying its B&O tax to the receipts of an out-of-state vendor who asserts that its in-state presence is unrelated to drop-shipped sales made into the state. Resolved in favor of the state. Held: Neither the dormant commerce clause nor state law bar the imposition of a B&O tax to drop-shipped sales delivered in Washington.
Barbara J. Brohl, Executive
Director of the Colorado Department of Revenue
v.
The Direct Marketing Association (on petition)
U.S. Supreme Court, on Petition for Writ of Certiorari to the Tenth Circuit
 
No. 16-458
If the Supreme Court were to grant the DMA’s petition asking it to consider whether the Colorado use tax reporting statute discriminates against interstate sellers, should it also grant Colorado’s cross-petition asking the Court to reconsider Quill v. North Dakota.Petition denied.
Renzenberger, Inc. 
v.
New Mexico Taxation and Revenue Department
New Mexico Court of Appeals
 
No. A-0001-CA-2015-34999
Whether provisions of federal statute 49 U.S.C. § 14505, which prohibit states from imposing tax on receipts from passengers traveling in interstate commerce by motor carrier, preempt state tax on intrastate transportation that may be connected with that interstate travel.Resolved in favor of the state.  Held: Intrastate transportation is not “transportation of a passenger traveling in interstate commerce by motor carrier.” 
 
Health Net, Inc.
v.
Department of Revenue, State of Oregon
Oregon Supreme Court 

No. S063625
This is a Compact case (see Gillette). Resolved in favor of the state. Held: The legislature retained the right to modify the Compact to require the use of an apportionment formula different than the Compact formula and doing so did not violate the Constitution. 
2015
Franchise Tax Board of the State of California
v.
Gilbert P. Hyatt
U.S. Supreme Court, on Writ of Certiorari to the Nevada Supreme Court

No. 14-1175
Whether Nevada v. Hall should be overturned, allowing states to assert sovereign immunity in the courts of another state and whether the Nevada Supreme Court could award damages against the Franchise Tax Board that exceeded what could have been awarded against Nevada’s own tax agency.The Court was split 4-4 on the question of whether to overturn Hall, but ruled that the Nevada court erred in awarding the amount of damages.
Crutchfield Corp.
v.
Joseph W. Testa,
Tax Commissioner of Ohio
Ohio Supreme Court
 
No. 15-0386
Whether the imposition of the Ohio Commercial Activity Tax on businesses with more than $500,000 in annual gross receipts violates Quill v. North Dakota. .Resolved in favor of the state. Held: Quill’s physical-presence requirement does not extend to business-privilege taxes such as the CAT. The $500,000 sales threshold meets the substantial nexus requirement of the dormant commerce cause.
Direct Marketing Association
v.
Barbara Brohl, Executive Director, Colorado Department of Revenue
Tenth Circuit
 
No. 12-1175
Whether the dormant commerce clause and Quill v. North Dakota would allow Colorado to require certain businesses to provide notice and report information necessary for customers to pay, and for the state to enforce, the use tax, despite the fact that these businesses lack the requisite physical presence to be required to collect the sales taxResolved in favor of the state. Held: Quill does not prevent the state from requiring businesses without physical presence to comply with notice and information-reporting obligations.
Franchise Tax Board of the State of California
v.
Gilbert P. Hyatt (on petition)
U.S. Supreme Court, on Petition for Writ of Certiorari to the Nevada Supreme Court
 
No. 14-1175
Whether a state can assert its sovereign immunity against a suit brought in another state’s court and raising a challenge to Nevada v. Hall, and challenging the amount of damages awarded. Petition granted.
The First Marblehead Corporation and Gates Holdings, Inc.
v. 
Massachusetts Commissioner of Revenue
Massachusetts Supreme Judicial Court, on remand from the U.S. Supreme Court for consideration under Wynne
 
No. SJC-11609
Whether the Massachusetts court properly found in First Marblehead (I) (see below), involving application of the state’s financial institutions apportionment rules, that the result met the internal consistency test as later set out in Wynne. Resolved in favor of the state. Held: The Massachusetts rule met the internal consistency test.
Kimberly-Clark Corporation & Subsidiaries
v.
Commissioner of Revenue
Minnesota Supreme Court
 
Case No. A15-1322
This is a Compact case (see Gillette).Resolved in favor of the state. Held: The legislature’s had authority to effectively repeal the Compact apportionment formula.
Graphic Packaging Corporation
v.
Susan Combs, Comptroller of Public Accounts of the State of Texas
Texas Court of Appeals, Third Judicial District 

No. 03-14-00197-CV
This is a Compact case (see Gillette). Resolved in favor of the state. Held: The legislature had authority to mandate use of an apportionment formula other than the Compact’s formula for use in imposing the Texas Franchise Tax.
Vodafone Americas Holdings, Inc. & Subsidiaries
v.
Richard H. Roberts,
Commissioner of Revenue,
State of Tennessee
Tennessee Supreme Court 
 
No. M2013-00947-SC-R1 1-CV
Whether the commissioner properly exercised his authority to vary the standard apportionment formula in order to fairly reflect Taxpayer’s activities (and, therefore, its net earnings and net worth) for purposes of Tennessee franchise and excise taxes.Resolved in favor of the state. Held: The Commissioner did not abuse his discretion and the variance comported with statutory and regulatory requirements.  
2014
Comptroller of the Treasury of Maryland
v.
Brian Wynne
U.S. Supreme Court, on Writ of Certiorari to the Maryland Court of Appeals 
 
No. 13-485
Whether the dormant commerce clause requires Maryland to provide a credit for taxes paid on income of resident shareholders of an S corporation where the state also taxes nonresidents on income of S corporations apportioned to the state.Resolved in favor of the taxpayer. Held: Maryland’s tax scheme which taxes residents on 100% of income and nonresidents on an apportioned share of income violates the dormant commerce clause unless Maryland also provides a credit to residents for other state taxes paid.
Direct Marketing Association
v.
Barbara Brohl, Executive Director of the Colorado Department of Revenue
U.S. Supreme Court, on Writ of Certiorari to the Tenth Circuit 
 
No. 13-1032
Whether the federal Tax Injunction Act (TIA), 28 U.S.C. § 1341, bars federal jurisdiction over a challenge to Colorado’s sales and use tax-related notice and information reporting requirements.Resolved in favor of the taxpayer. Held: The TIA does not bar a suit challenging the notice and information reporting requirements since that suit does not seek to enjoin the collection of state tax.
The First Marblehead Corporation and Gates Holdings, Inc.
v. 
Massachusetts Commissioner of Revenue
Massachusetts Supreme Judicial Court
 
No. SJC-11609
Whether the Appellate Tax Board erred in applying a rebutable statutory presumption to conclude that loans should be sourced to Massachusetts for apportionment purposes where the taxpayer had its commercial domicile in Massachusetts.Resolved in favor of the state. Held: The board properly applied the presumption to conclude that loans should be soured to Massachusetts where the financial institution had its commercial domicile. This treatment was also internally consistent and did not violate the dormant commerce clause. 
Health Net, Inc. and Subsidiaries
v.
Department of Revenue
Oregon Tax Court, Regular Division
 
NO. TC 5127
This is a Compact case (see Gillette).Resolved in favor of the state. Held: The Oregon legislature disabled the Compact’s election to use the Compact formula when it enacted a mandatory formula. This action did not violate the Oregon Constitution or the Compact Clause of the U.S. Constitution. 
Montana Department of Revenue
v.
Priceline.Com, Inc.
Montana Supreme Court  
No. DA 14-0260
Whether Montana’s lodging tax or its sales tax applied to online travel companies’ receipts from facilitating hotel reservations in the state.Held: The lodging tax does not apply, but the sales tax does apply to the receipts.
Alabama Department of Revenue and Julie Magee, Commissioner, Department of Revenue
v.
CSX Transportation, Inc.
U.S. Supreme Court, on Writ of Certiorari to the Eleventh CircuitWhat is the correct test for “discrimination” under 49 U.S.C. §11501(b)(4) of the Railroad Revitalization and Regulatory Reform Act (the “4-R Act”), which prohibits states from imposing “another tax that discriminates against a rail carrier.”Held: CSX’s competitors are an appropriate comparison class, but the Eleventh Circuit erred in refusing to consider whether Alabama could justify its failure to grant a sales tax exemption to railroads that was granted to trucking companies where those companies paid fuel taxes that the railroads did not pay.
2013
Alabama Department of Revenue and Julie Magee, Commissioner, Department of Revenue
v.
CSX Transportation, Inc.
 (on petition)
U.S. Supreme Court, on Petition for Writ of Certiorari to the Eleventh Circuit
 
No. 13-553
What is the correct test for “discrimination” under 49 U.S.C. §11501(b)(4) of the Railroad Revitalization and Regulatory Reform Act (the “4-R Act”), which prohibits states from imposing “another tax that discriminates against a rail carrier.”Petition granted.
International Business Machines Corporation
v.
Department of Treasury of the State of Michigan
Michigan Supreme Court
 
No. 146440
This is a Compact case (see Gillette). Here, the taxpayer also raised the question of whether the Michigan legislature, by enacting a conflicting apportionment formula to that of the Compact, effectively repealed the Compact’s election.Resolved in favor of the taxpayer. Held: The legislature did not properly repealed the Compact election, and therefore the taxpayer was entitled to use that election.
International Business Machines Corporation
v.
Department of Treasury of the State of Michigan
Michigan Court of Appeals
 
No. 306618
This is a Compact case (see Gillette). Here, the taxpayer also raised the question of whether the Michigan legislature, by enacting a conflicting apportionment formula to that of the Compact, effectively repealed the Compact’s election.Resolved in favor of the state: Held: Because here was a facial conflict between the mandatory sales-factor apportionment formula and the Compact’s elective three-factor apportionment formula, the legislature had effectively repealed the Compact’s election.
Robert L. Thomas
v.
Cynthia Bridges, Director of the
Department of Revenue, State of Louisiana
Louisiana Supreme Court  
No. 2013-C-1855
Whether legal effect must be given to the purported registration in Montana of a motor home by a “shell” limited liability company established for the exclusive purpose of avoiding Louisiana’s sales tax on motor vehicles purchased in the state. Resolved in favor of the taxpayer. Held: The Department failed to show the corporate veil should be pierced. The court noted this issue could be addressed by the legislature. 
The Gillette Company & Subsidiaries
v.
California Franchise Tax Board, an Agency of the State of California
California Supreme Court  
No. S206587
Whether the election under Compact Article III of the Multi state Tax Compact created a binding obligation on the states adopting the compact which could not be varied, even with the implicit consent of the other states. .Resolved in favor of the state. Held: The Compact election was not a binding provision. 
2012
Harris Corporation
v.
Arizona Department of Revenue

First Data Corporation
v.
Arizona Department of Revenue
Arizona Court of Appeals, Division One
 
Nos. 1 CA-TX 11-0006 and 1 CA-TX 11-0008
Whether capital transactions may give rise to “business income” by meeting a stand-alone “functional test” under Section 1(a) of UDITPA.Resolved in favor of the state: The tax court properly applied the functional test to find that the gain from Taxpayer’s sale of its wholly-owned subsidiary was business income.
Home Depot U.S.A., Inc. and Affiliates
v.
Arizona Department of Revenue
Arizona Court of Appeals, Division One
 
No. 1 CA-TX 12-0005
Whether the taxpayer was engaged in a single unitary business with its wholly-owned subsidiary where the subsidiary received, tax-free, the parent company’s intangibles and subsequently licensed them back to the parent.Resolved in favor of the state. Held: Since the activities of Home Depot U.S.A., Inc. were substantially interdependent with those of its subsidiary, Homer TLC, Inc., the parent corporation was required to file a combined state return incorporating its subsidiary’s income.
In The Matter Of the Protest of Barnesandnoble.com LLC
v.
New Mexico Taxation and Revenue Department
New Mexico Supreme Court  
No. 33,627
Whether barnesandnoble.com had nexus for gross receipts (sales) tax despite lacking physical presence in New Mexico under Quill v. North Dakota, because of the activities of its “bricks-and-mortar” affiliate.Resolved in favor of the state. Held: The activities conducted by the bricks-and-mortar affiliate in the state were sufficient to create a substantial nexus between the internet seller and New Mexico.
Performance Marketing Association, Inc.
v.
Brian A. Hamer, Director, Illinois Department of Revenue
Illinois Supreme Court  
No. 114496
Whether the discriminatory tax provision of the Internet Tax Freedom Act preempts an Illinois tax imposed on certain internet activities.Resolved in favor of the taxpayer. Held: The tax was not clearly imposed on print media or on-the-air broadcasting and was therefore a discriminatory tax on electronic commerce within the meaning of federal law.
Direct Marketing Association
v.
Barbara Brohl, Executive Director,
Colorado Department of Revenue
Tenth Circuit
 
No. 12-1175
Whether Colorado’s use tax notice and reporting statute violated the dormant commerce clause.The Tenth Circuit did not reach the merits because it found the Tax Injunction Act, 28 U.S.C. 1341, deprived federal courts of jurisdiction.
2011
Equifax, Inc. and Equifax Credit Information Services, Inc.
v.
Mississippi State Tax Commission
Mississippi Supreme Court  
No. 2010-CA-01857
Whether the Mississippi State Tax Commission had authority to invoke the “equitable apportionment” provisions of Miss. Admin. Code 35.III.806 § 402-10 to more fairly apportion the Taxpayers’ income.Resolved in favor of the state. Held: The taxpayer has the  burden of proving that the Department’s use of an alternative apportionment method was arbitrary and capricious, and they failed to do so here. Also, the Department’s use of an alternative apportionment method was not, effectively, a new “rule” adopted in violation of the Administrative Procedures Act.
The Gillette Company & Subsidiaries
v.
California Franchise Tax Board
California Court of Appeal, First Appellate District, Division Four
 
No. A130803
Whether the adoption of California’s mandatory apportionment formula other than the UDITPA formula that superseded the Compact’s  Article III election was an impermissible alteration or amendment of the CompactResolved in favor of the taxpayer: The Compact was found to be a valid multistate compact, and California was bound by it and its apportionment election provision until it enacts a statute repealing the Compact provision.
2010
CSX Transportation, Inc.
v.
Alabama Department of Revenue and Cynthia Underwood, Assistant Revenue Commissioner
U.S. Supreme Court, on Writ of Certiorari to the Eleventh Circuit 
 
No. 09-520
Whether 49 U.S.C. §11501(c) of the Railroad Revitalization and Regulatory Reform Act (the “4-R Act”) provides federal jurisdiction to review claims brought under §11501(b)(4), and — if so — whether providing sales tax exemptions for fuel used by rail carrier competitors, but not rail carriers, subject  challenge (despite the fact that fuel for motor carriers is subject to an analogous but separate excise tax).Resolved in favor of the taxpayer: The railroad could challenge Alabama’s sales and use taxes as discriminatory under the Railroad Revitalization and Regulatory Reform Act of 1976.
2009
Blue Bell Creameries, LP
v.
Reagan Farr, Commissioner, Department of Revenue, State of Tennessee
Tennessee Supreme Court  
No. M2009-00255-SC-R11-CV
Whether due process or the dormant commerce clause prevented Tennessee from imposing an excise tax on recognized capital gains, as business income, triggered by the redemption of stock in a holding company.Resolved in favor of the state. Held: The taxpayer’s capital gains were business earnings pursuant to the functional test provided in Tennessee Code Annotated section 67-4-2004(1) (Supp.2000) and therefore subject to the excise tax. Further, the tax assessment was constitutional pursuant to the unitary business principle.
Directv, Inc. and Echostar Satellite, L.L.C.
v.
Richard Levin, Tax Commissioner of Ohio
Ohio Supreme Court
 
No. 2009 – 0627
Whether Ohio’s imposition of its retail sales tax on the sale of direct-to-home satellite broadcasting services but not cable broadcasting services was discriminatory, but violated the dormant commerce clause.Resolved in favor of the state. Held: Differential tax treatment of two categories of companies is constitutional when the difference results solely from the nature of the business and not from the location of the company’s activities. Therefore, taxation of sales of satellite-broadcasting services but not of cable broadcasting services does not violate the Commerce Clause.
Franchise Tax Board of the State of California
v.
Gilbert P. Hyatt
Nevada Supreme Court  
No. 53264
Whether Nevada v. Hall, which provides that states may be subject to jurisdiction in another state’s courts for tort violations, continues to apply in light of the discretionary-function immunity test. Resolved in favor of the taxpayer. Held: Hall continues to provide for jurisdiction for tort violations, including in this case where the circumstances involved imposition of tax.
Ohio Grocers Association
v.
William W. Wilkins [Richard A.
Levin], Ohio Tax
Commissioner
Supreme Court of Ohio
 
No. 2008-2018
Whether the Ohio Commercial Activity Tax may be properly considered a franchise tax imposed on the privilege of doing business in the state, rather than a sales tax or other excise tax imposed on sales or retail transactions (for purposes of the state constitution). Resolved in favor of the state. Held: The Commercial Activity Tax is a tax on the privilege of doing business; the fact that it is measured by gross receipts that include proceeds from sale of food does not affect the constitutionality of the tax.
Polar Tankers, Inc.
v.
City of Valdez
U.S. Supreme Court, on writ of certiorari to the Alaska Supreme Court  
No. 08-310
Whether the “port-day” apportionment formula ( a single factor ratio of days spent in Port Valdez to days spent in all ports) violates either the due process or tonnage clauses, or the dormant commerce clause.Resolved in favor of the taxpayer. Held: The tonnage clause limitation on taxes imposed on ships in U.S. ports applies to taxes or duties imposed on a ship, “whether a fixed sum upon its whole tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty[,] . . .  which operate to impose a charge for the privilege of entering, trading in, or lying in a port.” 
Richard A. Levin, Tax Commissioner of Ohio
v.
Commerce Energy, Inc., et al.
U.S. Supreme Court, on Writ of Certiorari to the Sixth Circuit
 
No. 09-223
Whether the comity doctrine or the Tax Injunction Act barred federal jurisdiction over this complaint allegeding discriminatory state taxation and framed as a request to increase a commercial competitor’s tax burden.Resolved in favor of the state. Held: Comity compels federal courts to defer to state courts in lawsuits alleging discriminatory state taxation .
2008
Capital One Bank and Capital One F.S.B.
v.
Commissioner of Revenue
Massachusetts Supreme Judicial Court
 
No. SJC – 10105
Whether a state’s jurisdiction to levy a net income-based tax on the share of a taxpayer’s income attributable to the state is limited by the dormant commerce clause to only those taxpayers with a physical presence in the state.Resolved in favor of the state. Held: The taxpayers’ activities including the provision of valuable financial services to Massachusetts consumers, for which the taxpayers obtained significant compensation, and which required the use of banking and credit facilities in the state, established a substantial nexus with the Massachusetts.
Commissioner of Revenue
v.
Comcast Corporation and Continental Teleport, Inc,
Massachusetts Supreme Judicial Court
 
No. SJC –10209
Whether the attorney-client privilege or the attorney work product doctrine prevents disclosure to a tax agency of tax planning documents prepared by a public accounting firm.Resolved in favor of the taxpayer. Held: The court upheld the use of the work product doctrine to protect the documents from disclosure. 
Gannett Satellite Information Network, Inc.
v.
State of Montana, Department of Revenue
Montana Supreme Court
 
No. DA 08-0026
Whether the definition of “business income” in Section l.(a) of UDITPA includes separate a “functional” and  “transactional” tests to determine whether income is subject to apportionment.Resolved in favor of the state. Held: Applying a plain language analysis and examining extrinsic evidence of the legislature’s intent, the court found that the definition of “business income” contains both a transactional test and a separate functional test.
Miller Brewing Company
v.
Indiana State Department of Revenue
Indiana Supreme Court
 
Cause No. 49S00-0711-TA-00553
Whether the state was precluded from assessing Indiana tax on carrier pick-up sales. (The Commission’s brief advocated for mandatory taxpayer disclosure of inconsistency in method of reporting income.)Resolved in favor of the state. Held: There was no preclusion.
VFJ Ventures, Inc. (f/k/a/ VF Jeanswear, Inc.),
v.
G. Thomas Surtees, in his official capacity as Commissioner of the Department of Revenue for the State of Alabama, and the Alabama Department of Revenue
Alabama Supreme Court, on Writ of Certiorari to the Alabama Court of Civil Appeals, Cause No. 2060478
 
No. 1070718
Whether royalty payments made by a multistate corporation to related intangible management companies, which were part of the same corporate family and licensed back to the corporation trademarks and trade names, were subject to the “unreasonable exception” in Alabama’s add-back statute, and, thus, whether they would be added to the corporation’s federal taxable income when calculating the corporation’s taxable income in Alabama.Resolved in favor of the state: the “subject to tax” exception applies only to the extent a holding company’s income is actually taxed as a part of a tax on net income in another state, and the record did not demonstrate that the application of the add-back statute to VFJ was unreasonable 
2007
CSX Transportation, Inc.
v.
State Board of Equalization of the State of
Georgia
U.S. Supreme Court, on Writ of Certiorari to the Eleventh Circuit 
 
No. 06-1287
Whether Section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976 (the “4-R Act” ), currently codified at 49 U.S.C. § 11501, gives federal district courts jurisdiction to review a state’s choice of reasonable methodology for estimating “true market value” of railroad property. Resolved in favor of the taxpayer. Held: Even if important state policy questions are intertwined with the selection of a valuation methodology, Congress permitted courts to question such methodologies when it banned discriminatory assessment ratios. 
G. Thomas Surtees,
iCommissioner
of the Alabama Department of Revenue, and the
Alabama Department of Revenue
v.
VFJ Ventures INC.
(Initial)
Alabama Court of Civil Appeals 
 
No. 2060478
Whether the exception to the “add-back” requirement “if the corporation establishes that the adjustments are unreasonable” would nullify the add-back requirement whenever the taxpayer could demonstrate that the expense payments to a related entity had some plausible non-tax business purpose.Resolved in favor of the state. Held: Although the trial court’s judgment included a finding that VFJ’s income would be distorted by the application of the add back statute, the trial court made this decision based upon its determination that the underlying transactions had a valid business purpose and economic substance
G. Thomas Surtees,
Commissioner of the Alabama Department of Revenue, and the Alabama Department of Revenue
v.
VFJ Ventures Inc.(Reply)
Alabama Court of Civil Appeals 
 
No. 2060478
Whether the proper test for application of the “unreasonableness” exception should be whether the add-back of the expense deduction would result in distortion by materially overstating the taxpayer’s earnings in the state.Resolved in favor of the state. Held: Although the trial court’s judgment included a finding that VFJ’s income would be distorted by the application of the add back statute, the trial court made this decision based upon its determination that the underlying transactions had a valid business purpose and economic substance
2006
Department of the Revenue of the Commonwealth of Kentucky, et al.
v.
George W. Davis and Katherine W. Davis
U.S. Supreme Court, on Writ of Certiorari to the Kentucky Court of Appeals 
 
No. 06-666
Does it violate the dormant commerce clause for Kentucky to exempt from tax interest on its own state bonds while taxing interest from the bonds issued by other states? Resolved in favor of the state. Held: The state acting as a participant does not engage in unconstitutional discrimination against interstate commerce. 
 Corporation, Successor in Interest to the Mead Corporation, Petitioner,
v.
Illinois Department of Revenue, Director of the Illinois Department of Revenue, and Treasurer of the State of Illinois
Supreme Court of the United States, on Writ of Certiorari to the Appellate Court of the State of Illinois
 
No. 06-1413
Whether the State of Illinois properly taxed an apportioned share of the capital gain recognized in the sale of the assets used in the Taxpayer’s electronic publishing division.Resolved in favor of the taxpayer: the two businesses were not integrated enough to be considered a “unitary business” and Illinois was not allowed to tax Mead on the Lexis sale
Union Pacific Railroad Company
v.
Dan Salomone, Commissioner of Revenue, Department of Revenue in the State of Minnesota
Eighth Circuit, on appeal from the U.D. District Court for the District of Minnesota
 
06-3397
Whether Minnesota sales tax exemptions that apply to purchases of motor fuel upon which a petroleum excise tax has been paid amount to impermissible discrimination against a rail carrier in violation of the Railroad Revitalization and Regulatory Reform Act (the “4-R Act”).Resolved in favor of the taxpayer. Held: Only those taxes imposed upon the Railroads are taken into account in determining whether those taxes are discriminatory. Even though barges and ships are also subject to the same tax imposed upon the Railroads, two other members of the competitive class–motor carriers and air carriers–are not
Microsoft Corporation
v.
Franchise Tax Board
California Supreme Court  
No. S133343
Whether returns of principal are “gross receipts” to be included in the sales factor used for apportioning a taxpayer’s business income under the Uniform Division of Income for Tax Purposes Act (UDITPA).Resolved in favor of the state. Held: (1) The redemption of marketable securities at maturity generates “gross receipts” that are includible in the formula used to calculate a multistate entity’s tax; but (2) the Franchise Tax Board (the Board) met its burden of establishing that, in this instance, an alternate formula should be used to calculate Microsoft’s tax.
2005
General Motors Corporation et al.
v.
Franchise Tax Board
Supreme Court of the State of California
 
No. S127086
Whether returns of principal should be included in the sales factor used for
apportioning a taxpayer’s business income under the Uniform Division of
Income for Tax Purposes Act (UDITPA).
Affirmed in part and reversed in part: A repurchase agreement is analogous to a secured loan for UDITPA purposes and thus only the interest received should be treated as gross receipts. However, only the taxpaying corporation that performed the research is entitled to the credit.
Lanco, Inc., a Delaware Corporation
v.
Director, Division of Taxation
Superior Court of New Jersey, Appellate Division
 
No. A-3285-03T1
Whether the physical presence requirement for commerce clause “substantial nexus” for sales and use taxes under Quill Corp. v. North Dakota extends to income taxes.Resolved in favor of the state: The Quill physical presence requirement applied to sales and use taxes, not income taxes, therefore, the New Jersey Corporation Business Tax did not violate the Commerce Clause.
2004
AT&T Corp.
v.
Bobby Gene Allen, et al. (on petition)
U.S. Supreme Court, Petition for Writ of Certiorari to the Oklahoma Court of Civil Appeals
 
No. 03-1046
Whether the Oklahoma trial court erred in its finding of jurisdiction to hear a petition and its class certification of a case based on nationwide alleged erroneous collection of municipal taxes.Petition denied.
Duwayne D. Hammond, Jr., et al., Commissioners of the Idaho State Tax Commission
v.
Coeur D’Alene Tribe of Idaho, Nez Perce Tribe; Shoshone-Bannock Tribes (on petition)
U.S. Supreme Court, Petition for Writ of Certiorari to the Ninth Circuit

No. 04-624
Whether State of Idaho could collect motor fuel tax on gasoline delivered by non-tribal distributors to tribally-owned gas stations for sale on Indian reservations.Petition denied.
Stephen Richards, Secretary, Kansas Department of Revenue
v.
Prairie Band Potawatomi Natio (on petition)
U.S. Supreme Court, Petition for Writ of Certiorari to the Tenth Circuit
 
No. 04-631
Whether the State of Kansas could impose a motor fuel excise tax on non-Indian distributor for fuel supplied to gas station operated by tribe on reservation property.Petition granted.
2002
Franchise Tax Board of the State of California
v.
Gilbert P. Hyatt 
U.S. Supreme Court, on Writ of Certiorari to the Supreme Court of the State of Nevada
 
No. 02-42
Whether Nevada court was required to extend full faith and credit to California statute conferring complete immunity on California agencies.Resolved in favor of the taxpayer. Held: The Full Faith and Credit Clause does not require Nevada to give full faith and credit to California’s statutes providing its tax agency with immunity from suit. 
Franchise Tax Board of the State of California
v.
Gilbert P. Hyatt (on petition)
 
U.S. Supreme, Petition for Writ of Certiorari to the Nevada Supreme Court
 
No. 02-42
Whether Nevada court was required to extend full faith and credit to California statute conferring complete immunity on California agencies and whether the Supreme Court should reevaluate its ruling in Nevada v. Hall.Petition granted.
2001
Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas
v.
The Dow Chemical Company
U.S. Supreme Court, Petition for Writ of Certiorari to the Texas Court of Appeals 

No. 01-442
Whether Todd Shipyards admits of exceptions for independently procured insurance taxes that are (i) in the nature of a compensatory use tax; (ii) are non-discriminatory in whole or in part with respect to similar transactions occurring within the taxing State; (iii) are placed with affiliated insurance subsidiaries; or (iv) cover insureds within an affiliated group that includes subsidiaries organized or having a commercial domicile within the taxing State.Petition denied.
Gerald Goldberg, Executive Officer of the California Franchise Tax Board
v.
James Ellett

E. Les Sorenson, Executive Director of the California State Board of Equalization
v.
Carmine Artiglio
U.S. Supreme Court, Petition for Writ of Certiorari to the  Ninth Circuit

No. 01-731
 
Whether a bankruptcy discharge order could be enforced against state tax official, in suit for prospective injunctive and declaratory relief, pursuant to Ex Parte Young doctrine.Petition denied.
2000
In the Matter of the Appeal of Intercard, Inc., from an Order of the Division of Taxation on Assessment of Compensating Use Tax

Kansas Supreme Court

No. 99-8302-AS
Whether Intercard’s in-state installation services exceeded a de minimis presence and created nexus under the Commerce Clause sufficient to subject it to Kansas’ taxing jurisdictionResolved in favor of the taxpayer: Since Intercard was not incorporated or registered as a foreign corporation doing business in Kansas; all contracts and sales occurred outside of Kansas; and Intercard had no offices or employees in Kansas, it did not have nexus sufficient to be taxed in Kansas.
Ruth E. Johnson, Commissioner of Revenue, state of Tennessee
v.
J.C. Penney National Bank
 (on petition)

U.S. Supreme Court, Petition for Writ of Certiorari to the Tennessee Court of Appeals 

No. 00-205
Whether out-of-state bank that issued credit cards to state residents was physically present in the state and, thus, had a substantial nexus necessary for franchise and excise taxes to satisfy the Commerce Clause.Petition denied.
1999
Director of Revenue, Petitioner,
v.
CoBank ACB, as Successor to the National Bank for Cooperatives

U.S. Supreme Court, on Writ of Certiorari to the Missouri Supreme Court 

No. 99-1792
Whether National Bank for Cooperatives, which Congress had designated as federally chartered instrumentality of United States, was exempt from state income taxation after Congress’ deletion of the Farm Credit Act provision exempting bank for cooperatives from state taxation.Resolved in favor of the state. Held: The bank was not exempt. “[A]n instrumentality is entitled to implied tax immunity only when it is “so closely connected to the Government that the two cannot realistically be viewed as separate entities.”
1998
Hunt-Wesson, Inc.
v.
Franchise Tax Board
U.S. Supreme Court, on Writ of Certiorari to the California Court of Appeal 

No. 98-2043
Whether California’s interest matching rule resulted in extra-territorial taxation, whether California’s rule discriminated against interstate and foreign commerce, and whether the Constitution mandates any method of matching interest expenses with taxable and non-taxable income.Resolved in favor of the taxpayer. Held: Because California’s interest deduction offset provision is not a reasonable allocation of expense deductions to the income that the expense generates, it constitutes impermissible taxation of income outside the state’s jurisdictional reach in violation of the Due Process and Commerce Clauses.
The Sherwin-Williams Company
v.
Department of Revenue, State of Oregon
Oregon Supreme Court

No. S46023
Whether the denominator of the sales factor of UDITPA’s 3-factor formula for the apportionment of multistate income includes the total amounts received (including return of capital) from redemption upon maturity or sale of debt instruments used for interim investment of working capital.Resolved in favor of the taxpayer. Held: ORS 314.610(7) defines “sales” as “all gross receipts of the taxpayer.” Taxpayer’s receipts from the sale of securities met that definition and must be included in the denominator.
1996
State of Arkansas
v.
Farm Credit Services of Central Arkansas, PCA, et al.
U.S. Supreme Court, on Writ of Certiorari to the Eighth Circuit

No. 95-1918
Whether, under federal law that exempted PCA’s from state taxes on their notes, debentures, and other obligations, a PCA was also immune from Arkansas sales and income taxes. (Brief argued that the Tax Injunction Act barred the subject matter jurisdiction of the court)Held: PCA’s are not included within the judicial exception to the Act by virtue of their designation as instrumentalities of the United States and so may not sue in federal court for an injunction against state taxation without the United States as co-plaintiff. The court did not reach the merits of the taxation issue.
State of Montana; Mary Bryson; Big Horn County; and Martha Fletcher
v.
Crow Tribe of Indians; and United States of America
 (on petition)
U.S. Supreme Court, Petition for Writ of Certiorari to the  Ninth Circuit

No. 96-1829
Whether the Crow Tribe and the United States had an equitable claim to taxes paid by a third party to Montana and Big Horn County.Petition granted.
1995
E.I. Du Pont De Nemours & Co.
v.
State Tax Assessor
Maine Supreme Judicial Court Law Docket No. KEN-95-206Whether the apportionment formula adopted by the Maine State Tax Assessor violated the Due Process Clause or dormant foreign commerce clause to the extent that it permitted Maine to include foreign-source dividends in the computation of the taxable income of a Maine-nexus corporation.Resolved in favor of the state. Held: The formula did not violate the constitution.
General Motors Corporation
v.
Roger W. Tracy, Tax Commissioner of Ohio
U.S. Supreme Court, on Writ of Certiorari to the Ohio Supreme Court 

No. 95-1232
Whether Ohio’s general sales and use tax exemption for natural gas purchased from utilities discriminated against interstate commerce.Resolved in favor of the state. Held: The differential tax treatment of LDC and independent marketer sales did not facially discriminate against interstate commerce, and there was unquestionably a rational basis for Ohio’s distinction between these two kinds of entities.
1994
National Private Truck Council, Inc., et al.
v.
Oklahoma Tax Commission

U.S. Supreme Court, on Writ of Certiorari to the Oklahoma Supreme Court 

No. 94-688
Whether 42 U.S.C. § 1983 provides a remedial scheme for taxpayers.Resolved in favor of the state. Held: The Court concluded that §1983 does not call for courts–whether federal or state–to disrupt state tax administration by issuing injunctive or declaratory relief when state law furnishes an adequate legal remedy.
1993
Associated Industries of Missouri, et al.
v.
Janette M. Lohman, Director of Revenue
U.S. Supreme Court, on Writ of Certiorari to the Missouri Supreme Court 

No. 93-397
Is Missouri’s statewide, uniform local government use tax law consistent with the dormant commerce clause where it (i) was not adopted as a measure of “economic protectionism”; (ii) was, in part, enacted in response to the concerns expressed in National Bellas Hess, Inc., (iii) discriminates, if at all, in a de minimis degree against interstate commerce; and (iv) has no other reasonable alternative to solving the State’s legitimate interests?Resolved in favor of the taxpayer. Held: Missouri’s use tax scheme impermissibly discriminated against interstate commerce in those localities where the use tax exceeded the sales tax.
Barclays Bank, PLC
v.
Franchise Tax Board, an Agency of the State of California

Colgate-Palmolive Company
v.
Franchise Tax Board, an Agency of the State of California

U.S. Supreme Court, on Writ of Certiorari to the California Court of Appeals 

Nos. 92-1384 and 92-1839
Whether California’s application of worldwide combined reporting violates the dormant foreign commerce clause because it intrudes into an inherently federal area or imposes discriminatory compliance burdens, and whether the system violates the Due Process Clause.Resolved in favor of the state. Held: The Constitution did not impede application of California’s tax to Barclays and Colgate.
Department of Revenue of Oregon, and Richard Munn, Director of the Department of Revenue
v.
ACF Industries, Inc, et al.

U.S. Supreme Court, on Writ of Certiorari to the Ninth Circuit

No. 92-74
Whether state may grant property tax exemptions from generally applicable tax without subjecting taxation of railroad property to challenge under subsection of Railroad Revitalization and Regulatory Reform Act (the “4-R Act”) prohibiting “another tax that discriminates against a railroad carrier.”Resolved in favor of the state. Held: Section 11503 (the 4-R Act) did not limit the States’ discretion to exempt nonrailroad property, but not railroad property, from generally applicable ad valorem property taxes.
1992
Henry Harper, et al.
v.
Virginia Department of Taxation

U.S. Supreme Court, on Writ of Certiorari to the Virginia Supreme Court No. 91-794
Whether the Court’s decision in Davis v. Michigan Dep’t of Treasury should be applied retroactively. Resolved partly in favor of the taxpayer and partly in favor of the state: The Court ruled that Davis must be applied to open cases but that the state is free to choose the form of relief it will provide, so long as that relief is consistent with federal due process principles.
1991
Allied-Signal, Inc., as successor-in-interest to The Bendix Corporation
v.
Director, Division of Taxation

U.S. Supreme Court, on Writ of Certiorari to the New Jersey Supreme Court 

No. 91-615
Should the Court overrule Asarco and Woolworth, and, if so, when can states tax multistate income from a unitary business?Resolved in favor of the taxpayer. Held: The unitary business principle as set out in Asarco and Woolworth remains good law. But the “payor/payee” do no have to be unitary in order for the state to tax income as operational (business) income of the taxpayer.
Quill Corporation
v.
State of North Dakota, by and through its Tax Commissioner, Heidi Heitkamp

U.S. Supreme Court, on Writ of Certiorari to the North Dakota Supreme Court 

No. 91-194
Whether mail-order business needed to have physical presence in a state in order to permit the state, consistent with requirements of due process and Commerce Clause, to require it to collect use tax from its in-state customers.Resolved in favor of the taxpayer. Held: A state could not impose a sales and use tax collection requirement without some physical presence on the part of the retailer.
Wisconsin Department of Revenue
v.
William Wrigley, Jr. Company

U.S. Supreme Court, on Writ of Certiorari to the Wisconsin Supreme Court

No. 91-119 
Whether P.L. 86-272, which preempts state authority to tax income and is limited to “solicitation,” allows for a de minimis amount of non-solicitation activity; and also whether “solicitation” encompasses post-sale activities.Resolved in favor of the state. Held: The activities in this case were non-solicitation activities and, when considered together, were not de minimis. 
1989
McKesson Corporation
v.
Division of Alcoholic Beverages and Tobacco, State of Florida, et al. 

U.S. Supreme Court, on Writ of Certiorari to the Supreme Court of Florida (on reargument)

No. 88-192
When a taxpayer pays under protest a state tax found to violate clearly established law under the Commerce Clause, must the State provide some form of retrospective relief, such as a tax refund, or may the State elect to provide only prospective relief?

May a State, consistently with the Due Process Clause, remedy the effects of a tax found to discriminate against an interstate business in violation of the Dormant Commerce Clause by retroactively raising the taxes of those who benefited from the discrimination?
Resolved in favor of the taxpayer. Held: If a state penalizes taxpayers for failure to remit their taxes in a timely fashion, thus requiring them to pay first and obtain review of the tax’s validity later in a refund action, the Due Process Clause requires a meaningful postpayment remedy for tax scheme ultimately found unconstitutional.This could be effected by a refund to McKesson or by collecting back taxes from its competitors. 
McKesson Corporation
v.
Division of Alcoholic Beverages and Tobacco,State of Florida, et al

and

American Trucking Assoc., Inc 
v. 
Maurice Smith, Director


 

U.S. Supreme Court, on Writs of Certiorari to the Florida Supreme Court the Arkansas Supreme Court 

Nos. 88-192 and 88-325
What is the appropriate test for determining the availability of a tax refund as a remedy for a state tax that violates the Commerce Clause.Resolved in favor of the taxpayer. Held: If a state penalizes taxpayers for failure to remit their taxes in a timely fashion, thus requiring them to pay first and obtain review of the tax’s validity later in a refund action, the Due Process Clause requires a meaningful postpayment remedy for tax scheme ultimately found unconstitutional. 
The Jimmy Swaggart Ministries
v.
Board of Equalization of California

U.S. Supreme Court, on Writ of Dertiorari to the California Court of Appeal

No. 88-1374
Were the taxpayer’s claims properly before the court and were its systematic and purposeful exploitation of the California market in its mail order business sufficient to provide an adequate “nexus” to support the imposition of the state’s use tax.Resolved in favor of the state. Held: The merits of appellant’s Commerce Clause and Due Process Clause claims were not properly before the Court.
Trinova Corporation
v.
State of Michigan

U.S. Supreme Court, on Writ of Certiorari to the Michigan Supreme Court

No. 89-1106
Whether Michigan’s Single Business Tax was consistent with the Commerce and Due Process Clauses of the Constitution.Resolved in favor of the state. Held: As applied to Trinova during the tax year at issue, the SBT’s three-factor apportionment formula did not violate either the Due Process Clause or the Commerce Clause.
1988
Franchise Tax Board of the State of California, et al.
v.
Alcan Aluminum Limited and Imperial Chemical Industries PLC

U.S. Supreme Court, on Writ of Certiorari the Seventh Circuit

No. 88-1400
Whether a foreign company which is the sole stockholder of an American subsidiary has standing to challenge the California’s accounting method for determining locally taxable income of that subsidiary; and whether federal court jurisdiction is barred under the Tax Injunction Act (28 U.S.C. § 1341) or comity.Resolved in favor of the state. Held: The company had standing to challenge California, but their action in federal court was barred under the Tax Injunction Act.
1987
Shell Oil Company
v.
The Iowa Department of Revenue
U.S. Supreme Court, on Appeal from the Iowa Supreme Court

No. 87-894
Whether the Outer Continental Shelf Lands Act precludes the State of Iowa from imposing a tax upon that portion of a unitary net income base which is reasonably attributable to the taxpayer’s income-producing activities.Resolved in favor of the state: The Outer Continental Shelf Lands Act did not prevent Iowa from including income earned from the sale of oil and gas extracted from the Outer Continental Shelf in the apportionment formula it uses to calculate in-state taxable income.
1981
Chicago Bridge & Iron Company
v.
Caterpillar Tractor Co., Illinois Department of Revenue, et al.

U.S. Supreme Court, on Appeal from the Illinois Supreme Court 

No. 81-349
Is a state either permitted or required, by either the dormant commerce clause or due process, to employ the unitary method to determine the taxable net income of a domestic United States’ parent corporation and its domestic subsidiaries doing business in the state if such corporations conduct a worldwide unitary business in conjunction with commonly owned, controller and manager subsidiary corporations, including foreign subsidiary and affiliated corporations?Resolved in favor of the taxpayer.
Held: Appeal dismissed for want of substantial federal question.
1978
Commonwealth of Pennsylvania
v.
United States Tobacco Company

U.S. Supreme Court, on appeal from the Pennsylvania Supreme Court 

No. 77-1780
Brief asked the court to note probable jurisdiction.Petition denied
1977
GTE Automatic Electric Incorporated
v.
Robert H. Allphin, as Director of Revenue of the State of Illinois
Supreme Court of Illinois

No. 48578
Whether sales drop-shipped by the taxpayer’s suppliers to customers located in states where the taxpayer lacked nexus were properly included in the Illinois numerator of the sales factor, and, if not, whether they were  properly excluded from both the numerator and denominator of the sales factor.Resolved in favor of the state. Held: The Director, under the general relief provision of the Act, had the administrative authority to include in the numerator of the taxpayer’s Illinois sales factor sales to customers in states where the taxpayer was not taxable. 
Japan Line, Ltd., et al.
v.
County of Los Angeles, et al
.
U.S. Supreme Court, on Appeal from the California Supreme Court 

No. 77-1378
Whether California ad valorem property tax, as applied to Japanese shipping companies’ cargo containers which were based, registered, and subjected to property tax in Japan, and were used exclusively in foreign commerce, was unconstitutional under the commerce clause.Resolved in favor of the taxpayer. Held: In addition to answering the nexus, apportionment, and nondiscrimination questions posed in Complete Auto, a court must also inquire, first, whether the tax creates a substantial risk of international multiple taxation, and, second, whether the tax prevents the Federal Government from “speak[ing] with one voice” when regulating foreign commerce. 
    
1976
U.S.Steel Corp. v. Multistate Tax CommissionU.S. Supreme Court, on Appeal from the U.S. Dist. Court for the Southern Dist. of N.Y.NOTE: THIS IS A BRIEF FILED IN SUPPORT OF THE MTC BY VARIOUS STATES ADDRESSING WHETHER THE MULTISTATE TAX COMPACT VIOLATES THE U.S. CONSTITUTION’S COMPACT CLAUSE BY USURPING  FEDERAL SOVEREIGNTY OR DISFAVORING NONMEMBER STATES. Resolved in favor of the Multistate Tax Commission. Held: The Multistate Tax Compact, like many interstate governmental agreements, is not unconstitutional.  
11971
Heublein, Inc.,
v.
South Carolina Tax Commission
U.S. Supreme Court, on Appeal from the Souith Carolina Supreme Court 

No. 71-879
Whether, incident to South Carolina’s valid scheme of regulating the sale of liquor within the state, a requirement that a manufacturer do more, as a condition of doing business, than merely solicit sales was permissible even though it had the effect of requiring the out-of-state manufacturer to undertake activities that eliminate its P.L. 86-272 protection.Resolved in favor of the state. Held: Heublein’s activities within South Carolina exceeded the minimum standards established in P.L. 86-272 and South Carolina may, pursuant to an otherwise valid regulatory scheme, compel Heublein to undertake activities that take it beyond the protection of that federal statute.