Digital Equipment Corp. v. Department of Revenue

916 P.2d 933, 129 Wash. 2d 177

Opinions

Smith, J.

— Digital Equipment Corporation seeks direct review by this court of a Thurston County Superior Court order on summary judgment dismissing Digital’s action for refund of or credit for business and occupation (B&O) taxes paid to the State of Washington between January 1, 1983 and August 11, 1987. We granted review. We affirm only the dismissal.

QUESTIONS PRESENTED

The questions presented in this case are: (1) whether United States Supreme Court decisions rendered subsequent to this court’s 1988 decision in National Can II¹ have undermined that holding, which denied retroactive application of the Supreme Court’s 1987 ruling in Tyler Pipe Industries v. Department of Revenue,² a case which struck down as unconstitutional Washington’s business and occupation (B&O) tax exemption scheme; and (2) whether the remedy of retroactively applying the 1987 B&O tax credit legislation (RCW 82.04.440) meets the requirements of due process under the Fourteenth Amendment.³

STATEMENT OF FACTS

In 1984, a group of taxpayers filed suit for refunds of B&O taxes paid to the state of Washington. The taxpayers argued that the state’s B&O tax exemption under RCW 82.04.440 violated the Commerce Clause of the United States Constitution, article I, section 8, by providing to lo cal manufacturers selling goods in this state a tax exemption not available to manufacturers who sold goods out of state. This court ultimately rejected that argument in the companion cases of Tyler Pipe Industries v. Department of Revenue and National Can Corporation v. Department of Revenue.4

In Tyler Pipe Industries v. Department of Revenue, the United States Supreme Court subsequently reversed both Tyler Pipe and National Can, holding that the tax exemption discriminated against interstate commerce in violation of the Commerce Clause.⁵ The Court then remanded the case to this court for resolution of "remedial issues.”⁶ In National Can Corporation v. Department of Revenue (.National Can II) we held that the Tyler Pipe decision operated only prospectively and thus no claims could be made for taxes which were paid prior to the decision in that case.⁷

The Washington Legislature responded to the Supreme Court decision in Tyler Pipe by amending the B&O tax exemption statute on August 11, 1987. The amendment replaced the old multiple activities exemption with a two-way credit scheme. The amendment cured the constitutional defect identified by the Court in Tyler Pipe8 by granting to businesses a credit for gross receipts taxes paid to this or any other state.⁹ Although the new credit law expressly stated it was to "take effect immediately,”¹⁰ the Legislature intended that the new law would operate retroactively in the event of a court-ordered remedy.¹¹ The Legislature also intended that these tax credits would be the exclusive remedy available for those entitled to relief.¹²

On August 27, 1987, Digital filed a complaint in the Thurston County Superior Court seeking refund of B&O taxes it paid between January 1, 1983 and July 31, 1987.¹³ On December 29,1988, Digital filed an amended complaint seeking an additional refund of taxes paid from June 23, 1987 through August 11, 1987, the interim period between the Tyler Pipe decision and the effective date of the 1987 legislation (the interim period).¹⁴ The amended complaint also charged that the state’s collection efforts of "said illegal taxes” were in violation of 42 U.S.C. § 1983, thus entitling Digital to attorney fees under 42 U.S.C. § 1988.¹⁵

On April 11, 1994, Digital moved for an order of partial summary judgment to grant its tax refund request for the period January 1, 1983 through August 11, 1987 and an award of attorney fees.¹⁶ The state cross-motioned for summary judgment on April 18, 1994, arguing for outright dismissal of Digital’s action.¹⁷ By opinion letter dated September 9, 1994, Judge William Thomas McPhee granted partial summary judgment in favor of the state and dismissed Digital’s refund claim as to all tax periods prior to June 23, 1987, but reserved ruling on taxes paid during the interim period pending further oral argument.¹⁸ Digital then filed a motion for reconsideration on October 5, 1994.¹⁹

On November 18, 1994, Judge McPhee entered an order denying Digital’s motion for reconsideration, granting the state’s motion for summary judgment and dismissing Digital’s refund claim in its entirety with prejudice.²⁰ In dismissing Digital’s claim, the trial court relied primarily on this court’s holding in National Can II that the Tyler Pipe decision was to operate only on a prospective basis.²¹

On December 16, 1994, Digital appealed directly to this court for review.²² It argues that United States Supreme Court cases decided subsequent to National Can II have undermined this court’s holding in that case, and those cases now require that Tyler Pipe be applied retroactively to tax periods predating its determination.²³ Digital also maintains that the 1987 tax credit law, RCW 82.04.440, does not provide it with meaningful redress for taxes it paid under the previous unconstitutional scheme, and hence violates its rights under the Due Process Clause of the Fourteenth Amendment.

DISCUSSION

Retroactivity of Tyler Pipe

This court was asked in National Can II to decide whether the United States Supreme Court’s decision in Tyler Pipe, which declared Washington’s B&O tax exemp tion scheme unconstitutional, must be applied retroactively or applied only prospectively. In deciding the issue, we relied primarily on the retroactivity test outlined by the Supreme Court in Chevron Oil v. Huson.24 In that case, three factors were enumerated for consideration in determining whether an appellate decision applies prospectively or retroactively: (1) whether the decision establishes a new rule of law by overruling clear past precedent or deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) whether retroactive application would further or retard the purposes of the rule; and (3) whether retroactive application would be inequitable.²⁵ Employing the Chevron Oil criteria, we concluded that Tyler Pipe applied on a prospective basis only and did not render taxes collected prior to the date of its determination unconstitutional.²⁶

However, as later observed by this court in Robinson v. Seattle,27 the precedential weight to be accorded Chevron Oil has been called into question by recent United States Supreme Court decisions. In James B. Beam Distilling Co. v. Georgia, a taxpayer brought a refund suit against Georgia, claiming a state tax statute which favored alcohol products produced from local goods violated the Commerce Clause.²⁸ The lower courts agreed the statute was unconstitutional in light of the Supreme Court’s decision in Bacchus Imports, Ltd. v. Dias, striking down a similar Hawaii statute,²⁹ but concluded the taxpayer was not entitled to a refund.³⁰ Using the test outlined in Chevron Oil, the Georgia Supreme Court held the Bacchus decision should not apply retroactively to facts antedating its pronouncement.³¹

The United States Supreme Court reversed without considering the Chevron Oil rationale. It held that because the decision in Bacchus applied the rule to the parties then before the Court, that rule should apply to all cases still pending.³² The Court reasoned that it was error "to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so.”³³ Although the Court in Bacchus had not explicitly addressed the question whether its holding should apply retroactively to facts predating its pronouncement, the Court in Beam concluded that retroactivity is assumed when the question of retroactivity is not reserved.³⁴ Writing for the majority, Justice Souter noted that "[bjecause the Bacchus opinion did not reserve the question whether its holding should be applied to the parties before it, ... , it is properly understood to have followed the normal rule of retroactive application in civil cases.”³⁵

In Harper v. Virginia Dep’t of Taxation, the Supreme Court was confronted with a Virginia tax statute which exempted from state income taxes only those retirement pensions paid by either state or local governments.³⁶ The Court had previously decided in Davis v. Michigan Dep’t of Treasury that a similar tax imposed by Michigan violated the constitutional doctrine of intergovernmental tax immunity because it treated federal employees differ ently from state employees.³⁷ After Davis, Virginia repealed the exemption statute.³⁸ Taxpayers sued the Virginia Department of Revenue seeking refund of taxes paid under the discriminatory scheme.³⁹

The trial court denied the refunds on the basis that the Davis decision did not apply retroactively, and the Virginia Supreme Court affirmed.⁴⁰ Applying the Chevron Oil test, the court held that Davis did not operate retroactively and that pre-Davis tax assessments thus were not improper.⁴¹ Reasoning that because the Court in Davis had not ruled on whether to apply its holding to the litigants in that case, the Virginia court concluded that it remained free to apply the Chevron Oil analysis.⁴² The Supreme Court reversed. Reiterating Justice Souter’s conclusion in Beam, the Court again noted that once a case announcing a rule of federal law has applied that rule to the litigants before the court, no court may " 'refuse to apply [that] rule . . . retroactively’.”⁴³ Citing Beam, the Court then articulated the following rule on retroactive application of a previous ruling:

When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

(Emphasis added.)⁴⁴

The Court then stated that:

"When [it] does not "reserve the question whether its holding should be applied to the parties before it,” ... an opinion announcing a rule of federal law "is properly understood to have followed the normal rule of retroactive application” and must be "read to hold . . . that its rule should apply retroactively to the litigants then before [it].” Furthermore, the legal imperative "to apply a rule of federal law retroactively after the case announcing the rule has already done so” must "prevai[l] over any claim based on a Chevron Oil analysis.”

(Emphasis added.)⁴⁵

Relying on this new "express reservation test,” the Court rejected the state court’s reasoning that the issue of retroactivity had not been addressed in Davis.46 It pointed out that in Davis the question of retroactivity had not been reserved by the Court; and since remedial issues had been considered, it had necessarily applied the rule announced in Davis to the litigants before it.⁴⁷ That being the case, the Court applied the Davis rule retroactively to the tax years at issue in the Harper taxpayers’ refund action.⁴⁸ The Court is thus considered to have applied a decision to the parties before it when it has not reserved the question whether its holding should be retroactively applied.⁴⁹

When the Supreme Court remands a case exclusively for resolution of remedial issues, it has not reserved the question of retroactive application of that case.⁵⁰ Once it has applied a decision to the litigants in one case, it must do so with respect to all others not barred by res judicata or procedural requirements,⁵¹ regardless of any conclusion derived from application of Chevron Oil principles.⁵² The normal rule, then, is retroactive application of a new pronouncement of federal law unless the Court declares otherwise.⁵³ Chevron Oil no longer controls in this area.⁵⁴

To the extent our decision in National Can II holds that Tyler Pipe applies only on a prospective basis, we overrule it. The rule derived from Beam and Harper is clear: when the United States Supreme Court remands a case, unless it explicitly reserves the issue of retroactive application of that case,⁵⁵ the normal rule of retroactivity is assumed. In Tyler Pipe, the Court remanded only on the issue of remedies, and did not reserve the question of retroactive application of its holding in the case.⁵⁶ Therefore, it follows that the benefit of the Tyler Pipe holding properly might extend to Digital, inasmuch as it would not be barred by either procedural requirements or by res judicata.

The 1987 Tax Credit Law

With retroactive application of the Tyler Pipe decision, Digital conceivably might be entitled to some type of relief. However, as Digital readily concedes, retroactive application of Tyler Pipe does not necessarily entitle it to a refund.⁵⁷ Our determination that Digital might be entitled to some form of relief in light of Tyler Pipe brings the 1987 credit law into operation.⁵⁸ But Digital argues the 1987 credit law, as an exclusive remedy, does not meet the requirements of federal due process.⁵⁹

A declaration by the United States Supreme Court that a tax scheme is unconstitutional does not, as a matter of federal law, require refund of taxes illegally collected.⁶⁰ Rather, "a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination.”⁶¹ To provide relief consistent with federal due process principles, however, a state may choose to provide a predeprivation remedy, such as "a meaningful opportunity for taxpayers to withhold contested tax assessments and to challenge their validity in a predeprivation hearing.”⁶² "On the other hand, if no such predeprivation remedy exists, 'the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation.’ ”⁶³ Such relief may take the form of refunds, or "some other order that 'create[s] in hindsight a nondiscriminatory scheme.’ ”⁶⁴

The issue in this case, then, becomes whether retroactive application of the 1987 credit law, a postdeprivation remedy, satisfies due process as "meaningful backward-looking relief’ that "create[s] in hindsight a nondiscriminatory scheme” which will "rectify any unconstitutional deprivation” suffered by Digital. To pass this test, the credit law must treat Digital and those manufacturers who benefited under the prior discriminatory scheme "in a manner consistent with the dictates of the Commerce Clause.”⁶⁵ It must also provide Digital with both "an opportunity to contest the validity of the tax and a 'clear and certain remedy’ designed to render the opportunity meaningful by preventing any permanent unlawful deprivation of property.”⁶⁶

Retroactive application of the credit law satisfies the requirements of federal due process. Under the former discriminatory tax scheme, some out-of-state manufacturers paid a wholesaling or retailing B&O tax on Washington sales and also paid manufacturing B&O taxes owed to another state. In-state manufacturers, however, were exempted from the manufacturing tax on any in-state sales subject to the wholesaling or retailing tax. The 1987 credit law remedies this problem by granting a tax credit to any manufacturer paying a gross receipts tax to the state of Washington or any other state. Retroactive application of the law equalizes the tax disparity between benefited and disadvantaged manufacturers by granting tax credits only to the latter. By retroactively granting credits only to manufacturers who suffered under the discriminatory law, the state has created "in hindsight a non-discriminatory scheme.”⁶⁷

Digital argues that under McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, the Supreme Court outlined the only three options available to states when attempting to provide meaningful backward looking relief: "(1) a full refund of the unconstitutional taxes collected, (2) a retroactive tax on the taxpayers exempted from the tax, or (3) a combination of the two remedies.”⁶⁸ But nothing in the McKesson opinion suggests the Court intended this enumeration of options to be exclusive. Nor is there any indication that the list of suggested remedies was meant to apply beyond the specific issue confronting the Court in that case: whether the requirements of federal due process were met when Florida provided only prospective relief to taxpayers who had been taxed under an unconstitutional scheme. Digital’s interpretation of McKesson also conflicts with the general rule recognized by the Court that the states retain flexibility in crafting a remedy for the unconstitutional collection of taxes.⁶⁹

The tax credit law, RCW 82.04.440, provides in part:

Persons taxable on multiple activities—Credits. (1) Every person engaged in activities which are within the purview of the provisions of two or more of sections RCW 82.04.230 to 82.04.290, inclusive, shall be taxable under each paragraph applicable to the activities engaged in.

(4) Persons taxable under RCW 82.04.230, 82.04.240, or subsection (2), (3), (4), (5), or (7) or RCW 82.04.260 with respect to extracting or manufacturing products in this state shall be allowed a credit against those taxes for any (i) gross receipts taxes paid to another state with respect to the sales of the products so extracted or manufactured in this state, (ii) manufacturing taxes paid with respect to the manufacturing of products using ingredients so extracted in this state, or (iii) manufacturing taxes paid with respect to manufacturing activities completed in another state for products so manufactured in this state. The amount of the credit shall not exceed the tax liability arising under this chapter with respect to the extraction or manufacturing of those products.

Subsection (5) defines "gross receipts tax” to include one which is "not, pursuant to law or custom, separately stated from the sales price” and "manufacturing tax” as "a gross receipts tax imposed on the act or privilege of engaging in business as a manufacturer. . . .”

Our consideration of the principal issues in this case became acutely academic when counsel for Digital during oral argument conceded that Digital had not been "double taxed” and consequently suffered no injury under the former unconstitutional tax scheme.⁷⁰ One of the justices asked "In your particular situation, did your client actually pay out-of-state gross receipts taxes on its manufacturing operations?” Counsel for Digital then replied "We were not actually double taxed. ” This was further reinforced by the April 6, 1994 declaration of R. S. Kuraski, manager of federal and state income tax audits for Digital, in support of Digital’s motion for partial summary judgment that:

Digital did not pay any qualifying extracting or manufacturing gross receipts taxes to any other jurisdictions outside Washington, including other state or local governments, the District Columbia or foreign countries, on any of the products which were manufactured outside the state of Washington and sold to Washington customers during the time periods [January 1, 1983 through June 23, 1987].[⁷¹]

This is consistent with the assertion of Respondent State in its brief that Digital suffered no injury and is thus entitled to no relief.⁷² We also conclude that in this case Digital is entitled to no relief either by tax credits or direct refunds under RCW 82.04.440.

We therefore affirm the Thurston County Superior Court in dismissing on summary judgment Digital’s action for refund of or credit for business and occupation (B&O) taxes paid to the State of Washington.

Applying the 1987 credit law to Digital’s claim for relief requires consideration of two tax periods. Because the law clearly applies to the interim period of June 23, 1987 and August 11, 1987,⁷³ Digital conceivably would have been eligible for credits for taxes paid during that period. However, the State correctly asserts that Digital is not entitled to credits for the interim period because it paid no gross receipts taxes, a requirement under the law.⁷⁴

As to the tax period prior to June 23, 1987, the date of the Tyler Pipe decision, Digital conceivably would have been entitled to credits for this period as well. While in American National Can we addressed only the issue of retroactive application of the 1987 credit law to the interim period, section 3 of the 1987 session laws applies the law to tax periods prior to June 23, 1987.⁷⁵ In this instance as well, Digital is not entitled to tax credits because it paid no gross receipts taxes.

SUMMARY AND CONCLUSIONS

Once the United States Supreme Court has applied a new pronouncement of federal law to the parties then before the Court, it does so with respect to all others not barred by res judicata or procedural rules. The Court is considered to have applied a decision to the parties before it when it has not explicitly reserved the question whether its holding should be applied retroactively. When the Court remands a case exclusively for resolution of remedial issues, it has not reserved the question of retroactive application of that case.

In the Tyler Pipe decision, in which the Supreme Court declared Washington’s B&O tax exemption scheme unconstitutional, the Court did not reserve the question of retroactivity, but instead remanded only for resolution of remedial issues. Tyler Pipe must be applied retroactively to tax periods predating its pronouncement, thus rendering taxes collected under the invalid exemption law unconstitutional. To the extent that our decision in National Can II conflicts with this interpretation of federal retroactivity law, we overrule it.

To provide a postdeprivation remedy for unconstitutionally collected taxes consistent with the principles of federal due process under the Fourteenth Amendment, a remedy must provide meaningful backward-looking relief. It must also create in hindsight a nondiscriminatory scheme which rectifies the unconstitutional deprivation.

Retroactive application of the 1987 credit law, designed to cure the constitutional infirmities of the B&O tax exemption scheme, satisfies the requirements of federal due process as a postdeprivation remedy. By providing manufacturers with tax credits for unconstitutional taxes paid, a clear and certain remedy is provided which cures the unconstitutional deprivation by equalizing the tax disparity between those manufacturers and manufacturers who were not subjected to the unconstitutional B&O taxes.

We affirm the Thurston County Superior Court only in its dismissal on summary judgment of the claim by Appellant Digital Equipment Corporation for refund of or credit under RCW 82.04.440 for business and occupation (B&O) taxes paid to the state of Washington between January 1, 1983 and August 11, 1987.

Dollxver and Johnson, JJ., concur.

Footnotes

1

109 Wn.2d 878, 749 P.2d 1286, cert. denied, 486 U. S. 1040 (1988).

2

483 U. S. 232, 107 S. Ct. 2810, 97 L. Ed. 2d 199 (1987).

3

Digital originally requested an award of attorney fees under 42 U.S.C. §§ 1983 and 1988, but later withdrew the request. See Appellant’s Reply Br. at 25.

4

See Tyler Pipe Indus, v. Department of Rev., 105 Wn.2d 318, 715 P.2d 123 (1986) and National Can Corp. v.. Department of Rev., 105 Wn.2d 327, 732 P.2d 134 (1986).

5

Tyler Pipe Indus, v. Department of Rev., 483 U.S. 232, 107 S. Ct. 2810, 97 L. Ed. 2d 199 (1987).

6

Tyler Pipe, 483 U.S. at 253.

7

National Can Corp. v. Department of Rev., 109 Wn.2d 878, 895, 749 P.2d 1286, cert. denied, 486 U.S. 1040 (1988).

8

Although the constitutionality of the 1987 credit law is not at issue in this appeal, we have determined the new law meets constitutional requirements. See American Nat’l Can v. Department of Rev., 114 Wn.2d 236, 248-53, 787 P.2d 545 (holding that the 1987 amendment to the B&O tax credit law satisfies the requirements of the equal protection, due process and commerce clauses), cert. denied, 498 U. S. 880 (1990).

9

Laws of 1987, 2d Ex. Sess., ch.3, § 3; RCW 82.04.440.

10

Laws of 1987, 2d Ex. Sess., ch. 3, § 5.

11

See id. at § 3; see also American Nat’l Can, 114 Wn.2d at 250-53.

12

Laws of 1987, 2d Ex. Sess., ch. 3, § 3 ("[R]elief [to] be limited to the granting of such credits”); American Nat’l Can, 114 Wn.2d at 253 ("[T]he 1987 credit law limits relief to the granting of credits.”).

13

See Clerk’s Papers at 4-5.

14

See id. at 11-12.

15

See id. at 12 and n.3.

16

See id. at 41-43.

17

See id. at 70.

18

See id. at 174-77.

19

See id. at 178.

20

See id. at 233-37.

21

See id. at 174-77.

22

See id. at 238-44.

23

See, e.g., Br. of Appellant at 3-7.

24

Chevron Oil v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971).

25

Chevron Oil, 404 U.S. at 106-07; National Can II, 109 Wn.2d at 881.

26

See National Can II, 109 Wn.2d at 895.

27

See Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992).

28

Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S. a. 2439, 2442, 115 L. Ed. 2d 481 (1991), cert denied, 115 S. Ct. 662, 130 L. Ed. 2d 597 (1994).

29

See Bacchus Imports v. Dias, 468 U.S. 263, 273, 104 S. Ct. 3049, 82 L. Ed. 2d 200 (1984) (the court struck down Hawaii tax statute favoring locally produced alcoholic beverages as a violation of the Commerce Clause).

30

Beam, 111 S. Ct. at 2442.

31

Id.

32

Id. at 2445.

33

Id. at 2446.

34

Id. at 2445.

35

Id.

36

Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993).

37

Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 817, 109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989).

38

Harper, 125 L. Ed. 2d at 82.

39

Id.

40

Id.

41

Id. at 83.

42

Id.

43

Id. at 86 (quoting Beam 111 S. Ct. at 2451.)

44

Id.

45

Id. at 86-87 (quoting Beam 111 S. Ct. at 2445.)

46

Id. at 87.

47

Id.

48

Id. at 88.

49

jHarper, 125 L. Ed. 2d at 86-87; Beam, 111 S. Ct. at 2445; Robinson, 119 Wn.2d at 76.

50

Harper, 125 L. Ed. 2d at 87; Beam, 111 S. Ct. at 2445.

51

See Beam, 111 S. Ct. at 2446 ("[Rjetroactivity in civil cases must be limited by the need for finality, . . .; once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed.”).

52

Id. at 2447; Robinson, at 75 (quoting Beam).

53

See Beam, 111 S. Ct. at 2443 (noting that the practice of retroactive application is overwhelmingly the norm); Robinson, 119 Wn.2d at 79 (same) (quoting Beam).

54

See Miller v. Santa Cruz Cy., 39 F.3d 1030, 1035 (9th Cir. 1994) (holding that Harper, not Chevron Oil, is now the controlling rule) cert denied, 115 S. Ct. 2613, 132 L. Ed. 2d 856 (1995). United States v. 20832 Big Rock Drive, 51 F.3d 1402, 1405-06 (9th Cir. 1995) (same).

55

The Court in Beam cited American Trucking Ass’n, Inc. v. Scheiner, 483 U.S. 266, 97 L. Ed. 2d 266, 107 S. Ct. 2829 (1987) as an example of reserving the issue of retroactivity to a state court. Beam, 111 S. Ct. at 2445. In American Trucking, the Court remanded a case to the Pennsylvania Supreme Court for consideration of whether the Court’s ruling on constitutionality "should be applied retroactively and to decide other remedial issues.” American Trucking, 483 U.S. 297-98.

56

See Tyler Pipe, 483 U.S. at 253; see also American Nat’l Can, 114 Wn.2d at 240.

57

See, e.g., Appellant’s Reply Br. at 16.

58

American Nat’l Can, 114 Wn.2d at 251.

59

See, e.g., Appellant’s Br. at 26-33.

60

'Harper, 125 L. Ed. 2d at 88.

61

Id. at 88-89 (quoting McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 39-40, 110 L. Ed. 2d 17, 110 S. Ct. 2238 (1990)).

62

Id. at 89 (quoting McKesson, 496 U.S. at 38).

63

Id. (quoting McKesson, 496 U.S. at 31).

64

Id. (quoting McKesson, 496 U.S. at 40).

65

McKesson, 496 U.S. at 40.

66

Id.

67

Digital argues that "retroactive application of the 1987 credit law will do nothing to change the fact that Digital paid the unconstitutional B&O tax while its competitors did not.” Appellant’s Reply Br. at 17. Digital also complains that it must apply for credits to equalize the tax disparity between it and manufacturers benefited under the unconstitutional exemption, while no such requirement is placed on the benefited manufacturers. Id. at 17 n.9. But Digital does not explain how either of these two facts leads to the conclusion that retroactive application of the 1987 credit law violates its rights under the Due Process Clause.

68

Appellant’s Br. at 30 (citing McKesson, 496 U.S. at 40-41).

69

See, e.g., McKesson, 496 U.S. at 39-40 ("a [sítate found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination”); Associated Indus. v. Lohman, 511 U.S. 641, 114 S. Ct. 1815, 1825, 128 L. Ed. 2d 639 (1994) (same); Harper, 125 L. Ed. 2d at 89 (noting that in crafting an appropriate remedy, a state is free to choose which form of relief it will provide, so long as it satisfies the minimum federal requirements of due process).

70

See RCW 82.04.440(4).

71

Clerk’s Papers at 48 (emphasis added).

72

See Resp’t’s Br. at 12.

73

See American Nat’l Can, 114 Wn.2d at 240-51 (holding that the 1987 credit law applies to the interim period of June 23, 1987 to August 11, 1987).

74

See Resp’t’s Br. at 12.

75

Laws of 1987, 2d Ex. Sess., ch. 3, § 3; RCW 82.04.440 (historical and statutory notes).