CDR SYSTEMS CORPORATION v. OKLAHOMA TAX COMMISSION

2014 OK 31, 339 P.3d 848, 2014 WL 1603560, 2014 Okla. LEXIS 38

Opinions

GURICH, J.

T1 Most, if not all states, have tax incentives whose primary purpose is to attract business to the state and to promote econom-ie development within the state.¹ Oklahoma is no different.² The Oklahoma Capital Gains Deduction was passed by the Legislature to promote significant business investment in Oklahoma's economy.³ Specifically, the deduction found in 68 O.S. Supp.2008 § 2358(D)(@2)(a)(8) ("deduction") is a tax incentive that allows a taxpayer to adjust its Oklahoma taxable income for qualifying gains receiving capital treatment that result from the "sale of all or substantially all of the assets of an Oklahoma company." "Oklahoma company", is defined as "an entity whose primary headquarters have been located in Oklahoma for at least three (8) uninterrupted years prior to the date of the transaction from which the net capital gains arise."⁴

12 Although state tax incentives of this kind attempt to promote economic development within the state, certain types of tax incentives raise constitutional concerns because the U.S. Supreme Court has said that "'Inlo State, consistent with the Commerce Clause, may "impose a tax which discriminates against interstate commerce ... by providing a direct commercial advantage to local business."'" Westinghouse Elec. Corp. v. Tully, 466 U.S. 388, 403, 104 S.Ct. 1856, 80 L.Ed.2d 388 (1984) In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006), the U.S. Supreme Court avoided deciding the constitutionality of a state tax credit that incentivized corporations to do business in the state of Ohio, and instead, ruled the city and state taxpayers who challenged the tax credit lacked standing to bring the action.

T3 Although the Supreme Court didn't directly weigh in on the issue in Cuno, it has said that there is a "delicate balancing of the national interest in free and open trade and a State's interest in exercising its taxing powers." Tully, 466 U.S. at 403, 466 U.S. 388. See also Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 329, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977). This "delicate balane-ing" requires a "case-by-case analysis and . such analysis has left "much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation." '" Tully, 466 U.S. at 403, 104 S.Ct. 1856 (citations omitted). The result in these types of cases often "turns on the unique characteristics of the statute at issue and the particular cireumstances in each case." Boston Stock Exchange, 429 U.S. at 329, 97 S.Ct. 599.

Facts & Procedural History

14 CDR Systems was incorporated in California in 1970 and manufactures polymer concrete and fiberglass handholes and pads for electric, water, and telephone company utilities.⁵ Eugene McGrane has been the sole shareholder of CDR since 1996. At the time of its sale in 2008, CDR was registered to do business in Florida, California, Michigan, Iowa, and Oklahoma, and its primary headquarters was located in Ormond Beach, Florida. CDR's operations in Oklahoma included a manufacturing facility in Waynoka, Oklahoma.

T5 On September 18, 2008, CDR entered into a stock purchase agreement with Hub-bell Lenoir City, Inc. to sell all of CDR's assets. Pursuant to the purchaser's election, the stock sale was treated as an asset sale under the Internal Revenue Code § 888(h)(10). CDR was bound by such election on its Oklahoma Small Business Corporation Income Tax Return.⁶ The assets that transferred on September 18, 2008, had been owned by CDR for more than three years. In August of 2009, CDR filed its 2008 Oklahoma Small Business Corporation Income Tax Return, claiming the Oklahoma Capital Gains Deduction for gains received from the $49,776,816 sale of CDR. The total gains received would have resulted in an exclusion from Oklahoma taxable income in the amount of $3,564,283.⁷

16 The Compliance Division of the Oklahoma Tax Commission denied the deduction claimed by CDR because CDR was not headquartered in Oklahoma for three years prior to the sale as required by 68 0.8. Supp.2008 § 2358(D).⁸ CDR protested the denial, claiming the statute violated the Privileges and Immunities Clause, the Equal Protection Clause, and the Commerce Clause of the U.S. Constitution.

T 7 The protest was tried to an ALJ on the briefs and stipulated facts. The ALJ denied the protest because the Division's adjustment complied with the statute, and the OTC was without authority to decide the constitutional validity of the tax statute. CDR timely appealed, and COCA found that CDR's Privileges and Immunities argument was without merit because the U.S. Supreme Court has held that a corporation is not a citizen within the meaning of the Privileges and Immunities Clause, citing Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 720, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

18 COCA also found that CDR's only contention regarding its Equal Protection claim was that "[in other decisions the U.S. Supreme Court has recognized that states cannot discriminate against non-residents and based its decisions on violation of the Equal Protection Clause of the United States Constitution." COCA observed that CDR only cited one case for this proposition, Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985), and that CDR provided no argument on its equal protection claim and did not show how application of the deduction violated equal protection. CDR did not petition for certiorari on either of these adverse rulings from COCA. As such, neither the Privileges and Immunities Clause nor the Equal Protection Clause is before this Court.⁹

19 However, COCA found the deduction discriminated on its face against interstate commerce and its effects on interstate commerce were not evenhanded or incidental. As such, COCA concluded the deduction violated the dormant commerce clause. The OTC petitioned this Court for certiorari review on the issue of whether the statute is an unconstitutional violation of the dormant commerce clause. We granted certiorari on October 14, 2018.

Standard of Review

110 In considering a statute's constitutionality, courts are guided by well-established principles and a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality." Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254. "Every presumption is to be indulged in favor of the constitutionality of a statute." Id. "It is also firmly recognized that it is not the place of this Court, or any court, to concern itself with a statute's pro-pricty, desirability, wisdom, or its practicality as a working proposition." Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶ 3, 984 P.2d 200, 204. "A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the legislative provision and a court's function extends no farther in our system of government." Id. In cases where the constitutionality of a state tax statute is at issue, the bears the heavy burden of proving the statute is unconstitutional. EOG Res. Mktg., Inc. v. Okla. State Bd. of Equalization, 2008 OK 95, ¶ 13, 196 P.3d 511, 519.

The Dormant Commerce Clause Does Not Apply in this Case

111 Article 1, § 8 of the U.S. Constitution "expressly authorizes Congress to 'regulate Commerce with foreign Nations, and among the several states'" Quill Corp. v. North Dakota By and Through Heitkamp, 504 U.S. 298, 309, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992). The Commerce Clause "says nothing about the protection of interstate commerce in the absence of any action by Congress. Nevertheless ... the Commerce Clause is more than an affirmative grant of power; it has a negative sweep as well. The Clause ... 'by its own force' prohibits certain state actions that interfere with interstate commerce." Id. "The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby 'imped{es] free private trade in the national marketplace." " Gen. Motors Corp. v. Tracy, 519 U.S. 278, 287, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997) (citations omitted). "No State, consistent with the Commerce Clause, may 'impose a tax which discriminates against interstate commerce ... by providing a direct commercial advantage to local. business." Boston Stock Exchange, 429 U.S. at 329, 97 S.Ct. 599. The "Commerce Clause does not, however, eclipse the reserved 'power of the States to tax for the support of their own governments." Id. at 328, 97 S.Ct. 599.

{12 In Tracy, 519 U.S. at 282, 117 S.Ct. 811, "Ohio levied a 5% tax on the in-state sales of goods, including natural gas, and it imposed a parallel 5% use tax on goods purchased out-of-state for use in Ohio." "[NJlatu-ral gas sales by 'natural gas compan[ies]' " were exempted from all state and local sales taxes. Id. Local natural gas utilities located in Ohio satisfied the definition of natural gas company under Ohio law, but "non-LDC gas sellers, such as producers and independent marketers" did not fall under this definition, and the state denied the exemption to such producers and independent marketers. Id.

113 The Tax Commissioner of Ohio applied the general use tax to General Motors, who "bought virtually all the natural gas for its Ohio plants from out-of-state marketers, not LDC's." Id. at 285, 117 S.Ct. 811. General Motors challenged the tax and argued that "Ohio's differential tax treatment of natural gas sales by marketers and regulated local utilities constitute[d] 'facial' or 'patent' discrimination in violation of the Commerce Clause." Id. at 287, 117 S.Ct. 811. General Motors argued that "by granting the tax exemption solely to LDC's, which are in fact all located in Ohio, the State has 'favor[ed] some in-state commerce while disfavoring all out-of-state commerce." Id. at 288, 117 S.Ct. 811.

T 14 The U.S. Supreme Court upheld the Ohio use tax exemption and found that the LDC's provided a product consisting of gas bundled with services and protections, which was different from the unbundled natural gas provided by independent gas marketers. Such difference in products "raise[d] a hurdle for GMC's claim that Ohio's differential tax treatment of natural gas utilities and independent marketers violates our virtually per se rule of invalidity, prohibiting facial discrimination against interstate commerce." Id. at 297-98, 117 S.Ct. 811.

The Court stated:

"Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities. Although this central assumption has more often than not itself remained dormant in this Court's opinions on state discrimination subject to review under the dormant Commerce Clause, when the allegedly competing entities provide different products, as here, there is a threshold question whether the companies are indeed similarly situated for constitutional purposes. This is so for the simple reason that the difference in products may mean that the different entities serve different markets, and would continue to do so even if the supposedly discriminatory burden were removed. If in fact that should be the case, eliminating the tax or other regulatory differential. would not serve the dormant Commerce Clause's fundamental objective of preserving a national market for competition undisturbed by preferential advantages conferred by a State upon its residents or resident competitors.

Id. at 298-99, 117 S.Ct. 811 (emphasis added).¹⁰

The Court went on to quote from H.P. Hood & Sons, Inc. v. Du Mond ¹¹:

Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his export, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality.

Tracy, 519 U.S. at 300-01, 117 S.Ct. 811 (emphasis added).

1 15 The Court concluded: "Thus, in the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference, whether by express discrimination against interstate commerce or undue burden upon it, to which the dormant Commerce Clause may apply. The dormant Commerce Clause protects markets and participants in markets, not taxpayers as such." Id. at 300, 117 S.Ct. 811 (emphasis added).¹²

In the case before us, as the OTC points out, the deduction does not target any particular industry or market. Rather, the deduction is available to a qualifying entity participating in any market or industry regardless of whether that entity participates in interstate commerce or intrastate commerce. There is no common market in which substantially similar entities compete under the design of the statute. Entities qualifying for the deduction will likely continue to serve different markets regardless of whether the deduction is available. When asked at oral argument how this particular deduction discriminated against interstate commerce, CDR could not articulate how the deduction discriminates against interstate commerce or even how it affects interstate commerce. CDR makes no assertion that a substantially similar entity that also produced handholes and who had its primary headquarters in Oklahoma received the deduction upon a sale of its assets.

{17 In fact, the deduction at issue in this state businesses. case is "quite different from the more familiar targets of Commerce Clause attacks, which, like tariffs, either protect local businesses from multistate competitors or extract tax revenues disproportionately from out-of-Whereas the out-of-state challenger to these sorts of provisions can convincingly complain that the state unfairly excluded or penalized outsiders, such pleas are far less compelling when the challenged provision is instead designed to invite, even to entice, the outsiders in."¹³ Without any actual or prospective competition in a single market, there is no negative impact on interstate commerce that results from the application of this deduction and no discrimination against interstate commerce to which the dormant commerce clause applies.

Even if the Dormant Commerce Clause Applies in this Case, the Taxpayer Has Failed to Overcome the Heavy Burden of Proving this Deduction is Unconstitutional

1. The Deduction Does Not Facially Discriminate Against Interstate Commerce

118 Section 2858(D) treats all taxpayers the same. The deduction is available to "any corporation, trust or estate"¹⁴ whose gains meet the statutory requirements regardless of whether the company is considered an instate or out-of-state company. As the OTC pointed out at oral argument, a company domiciled here but that does not have its primary headquarters here will not be eligible for the deduction. Similarly, a company that has its primary headquarters in the state but that hasn't been in existence for three years prior to its sale will not be eligible for the deduction.

{19 CDR relies on the U.S. Supreme Court's decision in Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996), to support its position that the deduction at issue in this case facially discriminates against interstate commerce. In Fulton, the Court invalidated North Carolina's " 'intangibles tax'" on a fraction of the value of corporate stock owned by North Carolina residents, a tax that was inversely proportional to the corporation's exposure to the state's income tax. Id. at 327-28, 116 S.Ct. 848. The tax was assessed at a stated rate, but residents "were entitled to calculate their tax liability by taking a taxable percentage deduction equal to the fraction of the issuing corporation's income subject to tax in North Carolina." Id. at 328, 116 S.Ct. 848. So, stock in a corporation doing no business in North Carolina was taxable on 100% of its value, and stock 'in a corporation doing all its business in North Carolina was not taxed at all. Id.

€ 20 In Fulton, the Secretary of Revenue of North Carolina did not dispute that the statute was facially discriminatory. The secretary "relie[d] instead on the compensatory tax defense." Id. at 333, 116 S.Ct. 848. Thus, the issue in Fulton was "whether the taxable percentage deduction [could] be sustained as compensatory." Id. at 334, 116 S.Ct. 848. The Fulton Court rejected North Carolina's defense and found the intangibles tax facially discriminated against interstate commerce, stating: "A regime that taxes stock only to the degree that its issuing corporation participates in interstate com-merece favors domestic corporations over their foreign competitors in raising capital among North Carolina residents and tends, at least, to discourage domestic corporations from plying their trades in interstate commerce." Id. at 333, 116 S.Ct. 848.

21 The OTC, in the case before us, certainly does not concede that the deduction facially discriminates against interstate commerce. Regardless, Fulton is distinguishable from the present case because the taxing scheme in Fulton actively discouraged participation in interstate commerce by tying tax liability directly to the proportion of instate versus out-of-state economic activity. However, the deduction in this case does not calculate tax liability based on the proportion of in-state activity to out-of-state activity. Rather, taxpayers subject to Oklahoma income tax receive the deduction for investing in Oklahoma's economy. The degree to which the entity generating the gains participated in out-of-state activity, ie., interstate commerce, is not relevant to whether the entity qualifies for the deduction., CDR has not, and cannot, argue that the amount of business it did in California, Michigan, Iowa, or Florida somehow affected whether it received the deduction on its Oklahoma income tax liability. CDR cannot point to any language in the statute that calculates tax liability based on the proportion of in-state activity to out-of-state activity.

1 22 Westinghouse Elec. Corp. v. Tully, 466 U.S. 388, 104 S.Ct. 1856, 80 L.Ed.2d 388 (1984) is also distinguishable. In that case, the New York Legislature enacted a franchise tax statute requiring the consolidation of the receipts, assets, expenses, and liabilities of a subsidiary Domestic International Sales Corporation with those of its parent corporation. Id. at 393, 104 S.Ct. 1856. "In an attempt to 'provide a positive incentive for increased business activity in New York State, however, the legislature provided a 'partially offsetting tax credit," which was limited to gross receipts from export products " 'shipped from a regular place of business of the taxpayer within [New York]!" Id. at 393, 104 S.Ct. 1856.

T23 The Court invalidated the tax credit and was specifically concerned about the statute's effect on activities in other states. The tax credit "hald] the effect of allowing a parent a greater tax credit on its accumulated DISC income as its subsidiary DISC move[d] a greater percentage of it shipping activities into the State of New York." Id. at 400, 104 S.Ct. 1856. More concerning for the Court was that "the adjustment decrease[d] the tax credit allowed to the parent for a given amount of its DISC's shipping activity conducted from new York as the DISC increase[d] its shipping activities in other States." Id. "[NJot only [did] the New York tax scheme 'provide a positive incentive for increased business activity in New York State, but also it penalize[d] increases in the DISC's shipping activities in other States." Id. at 400-01, 104 S.Ct. 1856 (citations omitted) (emphasis added).

¶ 24 Unlike in Tully, in Oklahoma, a company does not disqualify for the deduction because it increases its activities in another state. As the OTC points out, nothing in the statute prevents companies from simultaneously claiming exemptions they may be entitled to in other states for a sale of all or substantially all of their assets. The deduction is a tool used by the state to compete for business investment in OKkla-homa's economy by granting the tax deduction to both in-state and out-of-state businesses based on the extent of their activities in the State of Oklahoma. The deduction does not penalize the out-of-state activities of corporations doing business in Oklahoma. The deduction does not discriminate against interstate commerce on its face.¹⁵

2. The Deduction Does Not Have a Discriminatory Purpose

¶ 25 The Oklahoma Capital Gains Deduction was passed by the Legislature to promote significant business investment in Oklahoma's economy. The U.S. Supreme Court has said that "[the modern law of what has come to be called the dormant Commerce Clause is driven by concern about 'economic protectionism-that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." Davis, 553 U.S. at 337-38, 128 S.Ct. 1801 (emphasis added).¹⁶ Encouraging investment in Oklahoma's economy is not economic protectionism because the deduction in no way burdens out-of-state competitors; rather, the deduction is a mechanism to entice those out-of-state companies to locate in state.

1 26 In Trinova Corp. v. Michigan Dep't of Treasury, 498 U.S. 358, 111 S.Ct. 818, 112 L.Ed.2d 884 (1991), the U.S. Supreme Court upheld the constitutionality of Michigan's single business tax. Michigan's single business tax was a value added tax levied against entities having business activity within the state. Id. at 362, 111 S.Ct. 818. A taxpayer doing business both in and out of the state determined its apportioned tax in Michigan based on among other things, its business activity attributable to Michigan, including its Michigan payroll, its property located in Michigan, and its Michigan sales. Id. at 367-68, 111 S.Ct. 818.

127 The Court held the statute was not facially discriminatory. Trinova maintained that the single business tax discriminated against interstate commerce because the statute had a discriminatory purpose. Trino-va relied on a statement by the Governor of Michigan that the tax was enacted to " 'promote the development and investment of business within Michigan.'" Id. at 385, 111 S.Ct. 818. The Court found: "This statement helps Trinova not at all. It is a laudatory goal in the design of a tax system to promote investment that will provide jobs and prosperity to the citizens of the taxing State. States are free to 'structur[e] their tax systems to encourage the growth and development of intrastate commerce and industry. " Id. at 385-86, 111 S.Ct. 818 (emphasis added). See also Boston Stock Exchange, 429 U.S. at 327, 97 S.Ct. 599 ("Our decision today does not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry. Nor do we hold that a State may not compete with other States for a share of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discrimina-torily tax the products manufactured or the business operations performed in any other State.").

{ 28 As was the case in Trinova, CDR has presented no evidence "to demonstrate an impermissible motive" on the part of the State of Oklahoma in enacting this particular deduction. Trinova, 498 U.S at 386, 111 S.Ct. 818. Nothing in the record indicates this deduction was passed to discriminatorily tax products manufactured in another state or to discriminatorily tax the business operations performed in any other state. As such, the deduction does not have a discriminatory purpose.

3. The Deduction Has No Discriminatory Effect on Interstate Commerce

1 29 In Boston Stock Exchange, the Court found New York's transfer tax on securities transactions violated the commerce clause where transactions involving out-of-state securities sales were taxed more heavily than transactions involving a sale of securities within the state. Boston Stock Exchange, 429 U.S. at 336, 97 S.Ct. 599. The Court found the statute "foreclose[d] tax-neutral decisions" by forcing a nonresident contemplating the sale of securities to choose between two possible tax burdens. Id. at 331, 97 S.Ct. 599. "[The choice of exchange by all nonresidents ... [was] not made solely on the basis of nontax criteria." Id. "[TJhe seller [could not] escape tax lability by selling out of State, but [could] substantially reduce his liability by selling in State. The obvious effect of the tax [was] to extend a financial advantage to sales on the New York exchanges at the expense of the regional exchanges." Id.

1830 CDR has never argued that this deduction somehow precluded it from making a tax-neutral decision with respect to its decision to sale its assets. CDR's decision to maintain its primary headquarters in Florida was because the owner lived in Florida and it was the most practical location. Additionally, CDR revealed at oral argument it has been in Oklahoma since around 1986 and did not initially come to Oklahoma because of this particular tax incentive or any other tax incentive provided for in the Oklahoma statutes. All decisions by CDR were made solely on the basis of nontax criteria. On the record before us, the deduction does not preclude tax-neutral decision-making as the Court was concerned about in Boston Stock Exchange.

131 In Pike v. Bruce Church, Inc., 397 U.S. 137, 139, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), Bruce Church, Inc., grew cantaloupes in Parker, Arizona. Because the company lacked packing sheds in Parker, it transported the cantaloupes to its nearby facilities in California, where the cantaloupes were sorted, inspected, packed, and shipped in containers bearing the name of the California packer. Id. The official charged with enfore-ing the Arizona Fruit and Vegetable Standardization Act, which was designed to prevent deceptive packaging, entered an order prohibiting the company from shipping its cantaloupes outside the state unless they were packed in containers in a manner approved by the official to ensure the cantaloupes could be identified as of Arizona origin. Id. at 138, 90 S.Ct. 844. The company brought suit and challenged the constitutionality of the order, which would have had the effect of requiring the company to build packing facilities in or near Parker, Arizona, at a cost of about $200,000. Id. at 140, 90 S.Ct. 844.

132 The U.S. Supreme Court found the official's order issued under the Arizona statute unconstitutionally burdened interstate commerce because the "[s]tate's tenuous interest in having the company's cantaloupes identified as originating in Arizona [could not] constitutionally justify the requirement that the company build and operate an unneeded $200,000 packing plant in the [s]tate." Id. at 145, 90 S.Ct. 844. The Court went on: "[Tlhe Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home [s]tate that could more efficiently be performed elsewhere." Id.

133 In the case before us, the ree-ord is void of any evidence that CDR considered relocating so as to receive this deduction when it sold its assets. CDR has never alleged that it did not relocate because the relocation would have been financially burdensome or that relocation was impossible because operations could be performed more efficiently in Florida. In Pike, the company faced imminent loss of its anticipated 1968 cantaloupe crop in the amount of $700,000 if it was forced to build a packing facility in Arizona. The record in this case simply does not rise to the level of coercive relocation demonstrated in Pike. Although CDR argues the primary headquarters requirement discriminates against interstate commerce, hypothetical speculation about the cost an out-of-state company might incur in locating its primary headquarters in Oklahoma, without more, cannot support a determination that this deduction has the effect of discriminating against interstate commerce.¹⁷

134 The deduction at issue in this case has a legitimate purpose.¹⁸ As discussed above, structuring the state's tax system to encourage the growth and development of intrastate commerce and industry is a legitimate purpose. See Trinova, 498 U.S. at 385-86, 111 S.Ct. 818. But as the OTC also pointed out at oral argument, the state's jurisdiction to tax property and income is limited to that which is either owned in the state or else conducted in the state. For the State of Oklahoma to levy a tax on intangible property, the locus of that property must be in Oklahoma. Counsel for OTC explained that the main intangible involved in the sale of assets by CDR was goodwill. The locus of intangible property, ie. goodwill, is generally the primary headquarters of the company. Thus, the primary headquarters requirement ensures that the gains which qualify for the deduction, namely intangible property, have some nexus to property actually within Oklahoma's taxing jurisdiction. The State of Oklahoma is not obligated to permit a deduction for income it cannot tax.¹⁹

135 Additionally, as the OTC points out, the Legislature could have imposed a more burdensome means of promoting significant business investment in Oklahoma's economy. It could have required companies to be domiciled in Oklahoma to receive the deduction or to incorporate in Oklahoma to receive the deduction or to operate only in the State of Oklahoma to receive the deduction. Instead, the Legislature chose the three-year primary headquarters requirement to promote significant business investment in Oklahoma's economy. Such a determination is a policy consideration left to the Legislature.

[ 36 Even if CDR could prove this particular deduction somehow burdens interstate commerce, we would be unable to reliably determine whether the burdens imposed on interstate commerce by this deduction are clearly excessive in relation to its local benefits. Disagreement exists about whether state tax incentives designed to promote investment in a state's economy actually benefit the state.²⁰ The U.S. Supreme Court has said that courts are "institutionally unsuited to gather facts upon which economic predictions can be made,"²¹ and are " 'poorly equipped to evaluate with precision the relative burdens of various methods of taxation'"²² Again, we leave the cost-benefit analysis of this particular state tax incentive to the Legislature.

Conclusion

187 CDR has failed to carry the heavy burden of proving this particular deduction unconstitutionally discriminates against interstate commerce. We hold there is no discrimination against interstate commerce to which the dormant commerce clause applies, and that even if the dormant commerce clause applies in this case, the deduction does not facially discriminate against interstate commerce, it does not have a discriminatory purpose, and the deduction has no discriminatory effect on interstate commerce. The OTC properly denied the capital gains deduction to CDR.

COCA OPINION VACATED; ORDER OF THE OKLAHOMA TAX COMMISSION AFFIRMED.

1188 REIF, V.C.J., KAUGER, WINCHESTER, TAYLOR, GURICH, JJ., concur. 1 39 COLBERT, C.J., WATT, EDMONDSON, COMBS (by separate writing)JJ., dissent.

1

. See Philip M. Tatarowicz, Federalism, The Commerce Clause, and Discriminatory State Tax Incentives: A Defense of Unconditional Business Tax Incentives Limited to In-State Activities of the» Taxpayer, 60 Tax Law. 835, 845-48 (2007) (discussing the array of different tax incentives offered to businesses to promote economic development within the states).

2

. The deduction at issue in this case is just one of many tax incentives aimed at promoting investment in Oklahoma's economy. See, e.g., 68 O.S. Supp.2010 § 2357.4; 68 O.S. Supp.2008 § 2357.7; 68 O.S. §§ 3601-3612; 68 O.S. §§ 3701-3712; 68 O.S. §§ 3901-3910.

3

. Answer Brief of Appellee at 8.

4

. Section 2358(D) reads in its entirety:

D. 1. For taxable years beginning after December 31, 2005, the taxable income of any corporation, estate or trust, shall be further adjusted for qualifying gains receiving capital treatment. Such corporations, estates or trusts shall be allowed a deduction from Oklahoma taxable income for the amount of qualifying gains receiving capital treatment earned by the corporation, estate or trust during the taxable year and included in the federal taxable income of such corporation, estate or trust.

2. As used in this subsection:

a. "qualifying gains receiving capital treatment" means the amount of net capital gains, as defined in Section 1222(11) of the Internal Revenue Code, included in the federal income tax return of the corporation, estate or trust that result from:

(1) the sale of real property or tangible personal property located within Oklahoma that has been directly or indirectly owned by the corporation, estate or trust for a holding period of at least five (5) years prior to the date of the transaction from which such net capital gains arise,

(2) the sale of stock or on the sale of an ownership interest in an Oklahoma company, limited liability company, or partnership where such stock or ownership interest has been directly or indirectly owned by the corporation, estate or trust for a holding period of at least three (3) years prior to the date of the transaction from which the net capital gains arise, or

(3) the sale of real property, tangible personal property or intangible personal property located within Oklahoma as part of the sale of all or substantially all of the assets of an Oklahoma company, limited liability company, or partnership where such property has been directly or indirectly owned by such entity owned by the owners of such entity, and used in or derived from such entity for a period of at least three (3) years prior to the date of the transaction from which the net capital gains arise, b. "holding period" means an uninterrupted period of time. The holding period shall include any additional period when the property was held by another individual or entity, if such additional period is included in the taxpayer's holding period for the asset pursuant to the Internal Revenue Code,

c. "Oklahoma company", "limited liability company', or "partnership" means an entity whose primary headquarters have been located in Oklahoma for at least three (3) uninterrupted years prior to the date of the transaction from which the net capital gains arise,

d. "direct" means the taxpayer directly owns the asset, and

e. '"'indirect" means the taxpayer owns an interest in a pass-through entity (or chain of pass-through entities) that sells the asset that gives rise to the qualifying gains receiving capital treatment.

(1) With respect to sales of real property or tangible personal property located within Oklahoma, the deduction described in this subsection shall not apply unless the pass-through entity that makes the sale has held the property for not less than five (5) uninterrupted years prior to the date of the transaction that created the capital gain, and each pass-through entity included in the chain of ownership has been a member, partner, or shareholder of the pass-through entity in the tier immediately below it for an uninterrupted period of not less than five (5) years.

(2) With respect to sales of stock or ownership interest in or sales of all or substantially all of the assets of an Oklahoma company, limited liability company, or partnership, the deduction described in this subsection shall not apply unless the pass-through entity that makes the sale has held the stock or ownership interest or the assets for not less than three (3) uninterrupted years prior to the date of the transaction that created the capital gain, and each pass-through entity included in the chain of ownership has been a member, partner or shareholder of the pass-through entity in the tier immediately below it for an uninterrupted period of not less than three (3) years.

68 0.S. Supp.2008 § 2358(D).

5

. CDR is a corporation electing treatment as an "S Corporation" for tax purposes. Record on Appeal at 14.

6

. See 68 O.S. Supp.2013 § 2353(3) ("For all taxable periods covered by the Oklahoma Income Tax Act, the tax status and all elections of all taxpayers covered by the Oklahoma Income Tax Act shall be the same for all purposes material hereto as they are for federal income tax purposes except when the Oklahoma Income Tax Act specifically provides otherwise."); In the Matter of Income Tax Protest of Flint Res. v. State of Okla. ex rel. Okla. Tax Comm'n, 1989 OK 9, ¶ 19, 780 P.2d 665, 673 ('The language of § 2353(3) and (12), indicates that the Legislature intended that federal elections be controlling in determining Oklahoma taxable income.").

7

. CDR included the gains received from the sale of CDR as a capital gain on its 2008 Form 11208 Federal Income Tax Return. Record on Appeal at 15.

8

. See Record on Appeal at 3:

Explanation of Adjustments:

A) Taxes based on or measured by income shall not be allowed as a deduction in arriving at apportionable income (including Foreign Income Tax). 68 O.S. Section 2358(A)(5) and Permanent Rule 710:50-17-51(1).

B) Deductions incurred in producing income of a non-unitary nature shall be allocated on the same basis as the income. 68 O.S. Section 2358(A)(4) and Permanent Rule 710:50-17-51(18).

C) The deduction for qualifying gains receiving capital treatment on the sales of assets of a foreign based corporation has been denied. 68 O.S. Section 2358(D) and Permanent Rule 710:50-1 5-48.

D) Net rental income from non-unitary property is to be separately allocated. 68 O.S. Section 2358(A)(4) and Permanent Rule 710:50-17-51(12).

E) The sales factor shall include only sales (line 1, form 1120) and does not include sales or revenue from items other than sales to be included in the formula even though other types of income (royalties, interest, capital gains, and other income) are included in the apportioned income. 68 O.S. Section 2358(A)(5)(c) and Permanent Rule 710:50-17-71(1)(A).

9

. Okla. Sup.Ct. R. 1.180(b).

10

. See also Amerada Hess Corp. v. Div. of Taxation, New Jersey Dep't of Treasury, 490 U.S. 66, 78, 109 S.Ct 1617, 104 L.Ed.2d 58 (1989) ("'Whatever different effect the add-back provision may have on these two categories of companies results solely from differences between the nature of their businesses, not from the location of their activities.") (emphasis added); Alaska v. Arctic Maid, 366 U.S. 199, 204-05, 81 S.Ct. 929, 6 L.Ed.2d 227 (1961) (finding that owners of freezer ships and owners of cold storage facilities served separate markets, did not compete with one another, and thus could not be compared for Commerce Clause purposes).

11

. 336 U.S. 525, 539, 69 S.Ct. 657, 93 L.Ed. 865 (1949).

12

. See also Exxon Corp. v. Governor of Md., 437 U.S. 117, 127-28, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978) ("[The Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations.").

13

. Peter D. Enrich, Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 Harv. L.Rev. 377, 412 (1996) (emphasis added).

14

. 68 O.S. Supp.2008 § 2358(D) (emphasis added).

15

. Where a state law facially discriminates against protected commerce, the U.S. Supreme Court has applied a virtually per se rule of invalidity. Dep't of Revenue of Ky. v. Davis, 553 U.S. 328, 338, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008). If a state statute facially discriminates against interstate commerce, the statute "will survive only if it 'advances a legitimate local purpose that cannot be adequately served by' reasonable nondiscriminatory alternatives.'" Id. "In this context, 'discrimination' simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter." United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007). This strictest of strict scrutiny "is an extremely difficult burden, 'so heavy that facial discrimination by itself may be a fatal defect.'" Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 582, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997).

16

. Even if the statute does not discriminate on its face, if a discriminatory purpose is unavoidably clear, the statute will still be subject to strict scrutiny. Amerada Hess Corp., 490 U.S. at 75-76, 109 S.Ct. 1617 (citing Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984)).

17

. If a statute has the effect of unduly burdening interstate commerce, it may also be subjected to strict scrutiny. Amerada Hess Corp., 490 U.S. at 75, 109 S.Ct. 1617 (citing American Trucking Ass'ns, Inc. v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987).

18

. If a statute "regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Pike, 397 U.S. at 142, 90 S.Ct. 844.

19

. Further, CDR and the purchaser elected to treat the sale as a sale of assets for federal tax purposes. Under Oklahoma law, the taxpayer is bound by that election. While a deduction would have been allowed for the sale of real estate and equipment under § 2358(D)(2)(a)(1), CDR chose to pursue a course of action that maximized its tax savings by characterizing the sale as a sale of assets.

20

. See Enrich, supra note 13 at 389-97.

21

. Tracy, 519 U.S. at 308, 117 S.Ct. 811.

22

. Fulton, 516 U.S. at 342, 116 S.Ct. 848. Even "'expert economists' may have difficulty determining 'whether the overall economic benefits and burdens of a regulation favor local inhabitants against outsiders." Tracy, 519 U.S. at 308-09, 117 S.Ct. 811 (quoting Michael E. Smith, State Discriminations Against Interstate Commerce, 74 Calif. L.Rev. 1203, 1211 (1986)).