Department of Revenue v. Dow Chemical Co.

642 P.2d 104, 231 Kan. 37, 1982 Kan. LEXIS 233

• Court: Supreme Court of Kansas
• Decided: March 19, 1982
• Docket: No. 53,382
• Status: Published

Opinions

The opinion of the court was delivered by

McFarland, J.:

This is a declaratory judgment action brought by the Department of Revenue and its Secretary, Michael Lennen, seeking a judicial determination that the Department: (1) has the authority to determine the liability of a corporation for Kansas corporate income taxes by the “combined reporting” method; and (2) is entitled to obtain information from defendant, Dow Chemical Company (Dow), which is relevant or will lead to the discovery of relevant information to determine whether Dow or any of its affiliates doing business in Kansas are, in fact, conducting a unitary business with any other affiliated corporation for “combined reporting” purposes.

The trial court entered summary judgment in favor of the Department in all respects. Dow appeals therefrom, contending the summary judgment was both procedurally premature and substantively erroneous.

The petition filed herein states the background from which the action arose as well as the relief sought and alleged legal basis therefor. By virtue of the issues herein, it is appropriate to reproduce the petition in full:

“PETITION FOR DECLARATORY JUDGMENT

“The Department of Revenue of the State of Kansas and its Secretary, Michael Lennen, plaintiffs herein, in support of their Petition for a Declaratory judgment allege as follows:

“1. The Department of Revenue of the State of Kansas and its Secretary are charged with the enforcement of the Corporate Income Tax of the State of Kansas.

“2. The Dow Chemical Company, headquartered in Midland, Michigan and duly incorporated in the State of Delaware, was qualified to do and was doing business in the State of Kansas for the tax years 1970-1974.

“3. Pursuant to the authority granted the Secretary of the Department of Revenue, he assigned an income tax audit of Dow Chemical Company and its affiliated corporations for the tax years 1970-1974 to the Multistate Tax Commission on a ‘combined report’ basis.

“4. The Multistate Tax Commission recommended ‘combined reporting,’ subject to obtaining substantial additional information as to whether' or not Dow Chemical Company was conducting a unitary business with some or all of its affiliated corporations for ‘combined reporting’ purposes which Dow Chemical Company refused to furnish to Multistate Tax Commission’s auditors.

“5. Dow Chemical Company, in response to a request by the Department of Revenue of the State of Kansas and its Secretary, for unitary information has taken the position that the Kansas Department of Revenue and its Secretary have no power to require a ‘combined report’ with any affiliated corporations; and that the furnishing of the information requested would be very costly and time-consuming to Dow Chemical Company and not within the authority of the Kansas Department of Revenue and its Secretary to demand.

“6. It is the position of the Kansas Department of Revenue and its Secretary that they have the power, under applicable provisions of the Kansas Corporate Income Tax law, to require a ‘combined report’ contrary to the position taken by Dow Chemical Company; and that they can properly determine Dow Chemical Company’s Kansas income tax liability only by application of unitary principles and ‘combined reporting.’

“7. There thus exists an actual case or controversy between Dow Chemical Company, on behalf of it and its affiliated corporations, and the Kansas Department of Revenue and its Secretary over the authority of the Kansas Department of Revenue and its Secretary to require Dow Chemical Company to furnish information pertaining to, and if the facts warrant, to require Dow Chemical Company and any of its affiliated corporations doing business in Kansas to report their Kansas income tax liability on a ‘combined report’ basis.

“8. In order to resolve this controversy, which involves only a question of law and to preclude unnecessary and costly compliance and administrative costs if Dow Chemical Company is right in its position in regard to the authority of the Kansas Department of Revenue and its Secretary, the Kansas Department of Revenue to require ‘combined reporting’ by application of unitary principles, the Kansas Department of Revenue and its Secretary have instituted this declaratory judgment action as provided in K.S.A. 60-1701. This section reads as follows:

‘§ 60-1701. Jurisdiction; generally. In cases of actual controversy, courts of record within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceedings shall be open to objection on the ground that a judgment or order merely declaratory of right is the only relief requested. Controversies involving the validity or interpretation of deeds, wills, or other instruments of writing, express trusts, statutes, municipal ordinances, and other government regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.’ (L. 1963, ch. 303, 60-1701; Jan. 1, 1964.)

“9. This action involves only a question of the interpretation of the statutes of the State of Kansas and is an action ripe for declaratory judgment and relief as provided for in K.S.A. 60-1701.

“WHEREFORE, it is respectfully prayed by the Kansas Department of Revenue and its Secretary that this Court find:

“1. That an actual case or controversy exists between the Kansas Department of Revenue and its Secretary and Dow Chemical Company over the authority of the Kansas Department of Revenue and its Secretary to require the use of a ‘combined report’ for Kansas Corporate Income Tax purposes;

“2. That this matter is ripe for a declaratory judgment under K.S.A. 60-1701;

“3. That the Department of Revenue and its Secretary have the authority to determine the liability of a corporation for Kansas Corporate Income Tax purposes by the ‘combined reporting’ method under applicable provisions of the Kansas Corporate Income Tax law; and

“4. That the Kansas Department of Revenue is entitled to obtain any information from Dow Chemical Company which is relevant or will lead to the discovery of relevant information to determine whether Dow Chemical Company or any of its affiliates doing business in Kansas are, in fact, conducting a unitary business with any other affiliated corporation for ‘combined reporting’ purposes.”

Any discussion of the nature and purpose of the Multistate Tax Commission would be inappropriate to the issues herein. If additional information is desired, see the Multistate Tax Compact, K.S.A. 79-4301 et seq.

The petition states, in paragraph 6, that plaintiffs have the “power, under applicable provisions of the Kansas Corporate Income Tax law, to require a ‘combined report.’ ” Dow filed a motion for a more definite statement pursuant to K.S.A. 60-212(e) to require plaintiffs to specify on which particular statutes they were relying for their alleged authority. Dow contended it could not intelligently prepare an answer without this basic information. The Department responded with a 48-page treatise on “the basic concepts involved in the attribution of net income for state purposes, the history and development of the unitary concept for the attribution of net income, and the Kansas statutory authority for the application of unitary concepts, including ‘combined reporting’ for Kansas corporate income tax purposes.”

The Department stated therein:

“The Authority of the Plaintiffs to Require ‘Combined Reporting’ Stems from the Inter-Relationship of Various Provisions of the Kansas Corporate Income Tax Act and the General Case Authority Which have Applied the Unitary Principles for State Net Income Tax Attribution Purposes.”

Lest this statement be too confining, the plaintiffs cautioned:

“It [the memorandum] is not intended to set forth all the provisions of Kansas law or all judicial authority which may be relevant in the resolution of this question. This memorandum is, thus, not to be construed as containing any limitation on the statutory or case authority which may be relied upon by plaintiffs in this proceeding in support of ‘combined reporting’ for Kansas corporate income tax purposes.”

In its response thereto, Dow pointed out that the Department’s memorandum was in no way “a more definite statement” and sought dismissal of the case for failure to state a cause of action appropriate for declaratory judgment. Plaintiffs then filed a response to defendant’s response, wherein they again discuss the unitary concept for the attribution of corporate income. At this point the trial court concluded, on its own motion, the matter was ripe for summary judgment and entered judgment in favor of the Department in all respects. Ry virtue of the sequence of events above set forth, no answer was filed by Dow.

There is much merit in Dow’s argument that the summary judgment was prematurely granted. It would be very simple to set aside the summary judgment and remand the case back to the trial court for trial. However, such a course of action is neither in the best interests of the parties nor the proper utilization of the court system.

Dow contends there is no actual controversy between the parties which is ripe for determination in a declaratory judgment action. We agree.

In Hays v. Rymph, 191 Kan. 361, 364, 381 P.2d 326 (1963) this court held:

“An action for declaratory judgment may be maintained only for the purpose of determining and declaring fixed legal rights where it will accomplish some useful purpose. It cannot be invoked merely to try issues and determine questions that are uncertain and hypothetical.”

Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 243-44, 97 L.Ed. 291, 73 S.Ct. 236 (1952), is particularly pertinent herein:

“But when all of the axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especially in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. Such differences of opinion or conflicts of interest must be ‘ripe for determination’ as controversies over legal rights. The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.”

Let us apply the Hays and Wycoff holdings to the case at hand.

This court is being asked to “declare” two matters; (1) The Department has authority to determine the corporate income tax liability of a corporation on the “combined reporting method”; and (2) the Department has authority to request information from Dow relative to whether Dow and its affiliates are conducting a unitary business and thereby subject to the application of “combined reporting.”

Let us summarize the controversy herein. Combined reporting is, generally speaking, a method utilized by some jurisdictions to apportion income of affiliated corporate entities engaged in a unitary business in more than one state. “Combined reporting” is not such a term of art that its very use is shorthand for one complete and standardized procedure. There is no statute in Kansas defining “combined reporting” or expressly authorizing its utilization. There is no indication that the Department has, as to any other taxpayers, imposed or threatened to impose “combined reporting.” The trial court’s decision herein grants carte blanche authority to the Department to require Dow or any other corporation to file any variation of a “combined report” which the Department may now or hereafter favor. There are no limitations placed on the type or scope of preparatory information which any corporation may be required to file. Indeed, we do not even know what the information herein requested was. There is no limitation on percentage of ownership in affiliated corporations necessary to subject them to combined reporting. The action herein has enormous implications beyond the present dispute between the parties.

In short, the court is being asked to decide a nebulous and abstract question and thereby cloak the Department of Revenue with unlimited authority to require “combined reporting,” as the Department may later define it, by such corporations as the Department may consider subject to it.

We conclude the action herein does not constitute an actual controversy which is ripe for determination. The case is reversed and remanded to the trial court with directions to enter an order of dismissal.