EMC Corporation v. Glenn Hegar, Comptroller of Public Accounts of the State of Texas And Ken Paxton, Attorney General of the State of Texas

Opinion

ACCEPTED 03-15-00113-CV 5989837 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/8/2015 8:58:20 PM JEFFREY D. KYLE CLERK No. 03-15-00113-CV

In the Court of Appeals 3rd COURT FILED IN OF APPEALS AUSTIN, TEXAS for the Third Judicial District7/8/2015 8:58:20 PM JEFFREY D. KYLE Austin, Texas Clerk

EMC CORPORATION, Appellant, v. GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF T EXAS , AND K EN PAXTON, ATTORNEY GENERAL OF THE STATE OF TEXAS , Appellees.

On Appeal from the 353rd Judicial District Court Travis County, Texas

BRIEF OF APPELLEES

K EN PAXTON SCOTT A. K ELLER Attorney General of Texas Solicitor General CHARLES E. R OY RANCE CRAFT First Assistant Attorney Assistant Solicitor General General State Bar No. 24035655 JAMES E. DAVIS CHARLES K. ELDRED Deputy Attorney General for Assistant Attorney General Civil Litigation OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 (512) 936-2872 (512) 474-2697 [fax] rance.craft@texasattorneygeneral.gov

Oral Argument Conditionally Requested IDENTITY OF PARTIES AND C OUNSEL

Plaintiff/Appellant EMC Corporation

Trial and Appellate Counsel for Plaintiff/Appellant Doug Sigel (Doug.Sigel@RyanLawLLP.com) State Bar No. 18347650 RYAN LAW FIRM, LLP 100 Congress Avenue, Suite 950 Austin, Texas 78701 (512) 459-6000 (512) 459-6601 [fax]

Appellate Counsel for Plaintiff/Appellant Ryan Cotter (Ryan.Cotter@RyanLawLLP.com) State Bar No. 24075969 RYAN LAW FIRM, LLP 100 Congress Avenue, Suite 950 Austin, Texas 78701 (512) 459-6000 (512) 459-6601 [fax]

Trial Counsel for Plaintiff/Appellant Olga Goldberg (olga.goldberg@sutherland.com)* State Bar No. 24083081 SUTHERLAND ASBILL & BRENNAN LLP 1001 Fannin, Suite 3700 Houston, Texas 77002 (713) 470-6121 (713) 654-1301 [fax]

* Ms. Goldberg was associated with Ryan Law Firm LLP when she appeared as trial counsel. She is no longer counsel in this case. Her current contact information is listed here. Trial Counsel for Plaintiff/Appellant (continued) Gavin Justiss** State Bar No. 24070027 MACDONALD DEVIN 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 (214) 744-3300 (214) 747-0942 [fax]

Defendants/Appellees Glenn Hegar, Comptroller of Public Accounts of the State of Texas*** Ken Paxton, Attorney General of the State of Texas***

Appellate Counsel for Defendants/Appellees Rance Craft (rance.craft@texasattorneygeneral.gov) Assistant Solicitor General State Bar No. 24035655 OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 (512) 936-2872 (512) 474-2697 [fax]

** Mr. Justiss was associated with Ryan Law Firm LLP when he appeared as trial counsel. He is no longer counsel in this case. His current contact information is listed here.

*** This suit initially named Susan Combs, then Comptroller of Public Accounts, and Greg Abbott, then Attorney General, as defendants. Glenn Hegar succeeded Combs on January 2, 2015, and Ken Paxton succeeded Abbott on January 5, 2015. See TEX. R. APP. P. 7.2(a).

ii Trial and Appellate Counsel for Defendants/Appellees Charles K. Eldred (charles.eldred@texasattorneygeneral.gov) Assistant Attorney General State Bar No. 00793681 OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 017) Austin, Texas 78711-2548 (512) 475-1743 (512) 477-2348 [fax]

iii TABLE OF C ONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxiii

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxiv

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. The Texas Franchise Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Tax Base for the Franchise Tax . . . . . . . . . . . . . . . . . . 2

B. Apportionment of the Tax Base for the Franchise Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. The gross-receipts apportionment method . . . . . . . . 4

2. Requests for alternative apportionment (1970- 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3. Narrow exceptions to the gross-receipts method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

4. Current apportionment statute . . . . . . . . . . . . . . . . . 7

C. Current Calculation of Franchise Tax Due . . . . . . . . . . . . . 7

II. The Multistate Tax Compact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. Adoption of the Compact . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iv B. The Compact’s Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. The Compact’s purposes . . . . . . . . . . . . . . . . . . . . . . . 9

2. The Multistate Tax Commission . . . . . . . . . . . . . . . . 9

3. The Compact’s income-tax articles . . . . . . . . . . . . . 10

4. Compact provisions addressing joinder, withdrawal, and severability . . . . . . . . . . . . . . . . . . . 11

C. State Variations from the Compact’s Income-Tax Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III. The Franchise Tax and the Compact . . . . . . . . . . . . . . . . . . . . . . 13

IV. EMC’s Tax-Refund Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

I. In Calculating Its Franchise Tax, EMC Must Apportion Its Margin to Texas Using the Gross-Receipts Method in Section 171.106 of the Tax Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Section 171.106 Requires Taxpayers to Apportion Their Margin Using the Gross-Receipts Method, Subject Only to Certain Exceptions Provided in That Section. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B. The Compact’s Three-Factor Income-Apportionment Method Does Not Apply to the Franchise Tax Because It Is Not an Income Tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

v 1. Article III.1’s “taxpayer option” and Article IV’s apportionment method apply only to apportionment of “income” for a state’s “income tax.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. The Texas franchise tax is not an “income tax” and does not involve the apportionment of “income.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3. The Compact’s “income tax” definition does not expand Articles III and IV to include the franchise tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

a. Texas law establishes that the franchise tax does not meet the Compact’s “income tax” definition. . . . . . . . . . . . . . . . . . . . . . . . . . 23

b. The franchise tax does not meet the Compact’s definition of an “income tax” on its own terms. . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4. The Compact’s definition of “gross receipts tax” does not support EMC’s argument that the franchise tax falls within the Compact’s “income tax” definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

5. The Georgia Tax Tribunal’s analysis in Rosenberg v. MacGinnittie is inapposite. . . . . . . . . 27

C. Section 171.106’s Mandate to Use the Gross-Receipts Method Prevails over Any Conflicting Language in the Compact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

1. As the later-enacted, more specific statute, section 171.106(a) prevails over the Compact. . . . . 29

vi 2. Section 171.106(a) and the Compact cannot be harmonized so that both apply to the franchise tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

3. The presumption against implied repeals does not support EMC’s reading of the Tax Code. . . . . 33

4. IBM v. Department of Treasury is distinguishable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

a. The Michigan Supreme Court was evenly divided on the implied-repeal issue. . . . . . . . 36

b. The IBM plurality opinion hinges on Michigan’s distinct tax history. . . . . . . . . . . . 37

c. The IBM plurality misconstrued Article III.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

5. The rule that ambiguous tax statutes must be construed in taxpayers’ favor does not apply here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

II. Texas’s Membership in the Compact Does Not Preclude the Legislature from Requiring a Taxpayer to Use the Gross- Receipts Method to Apportion Margin. . . . . . . . . . . . . . . . . . . . . 41

A. Articles III and IV of the Compact Do Not Apply to the Franchise Tax Because It Is Not an “Income Tax.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

B. The Legislature May Restrict the Compact’s Application in Texas Law Because It Is Not a Binding Regulatory Compact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

1. The term “compact” does not make this Compact binding. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

vii 2. U.S. Steel did not address whether the Compact is a binding contract. . . . . . . . . . . . . . . . . . . . . . . . . . 44

3. The Compact does not exhibit the indicia of a binding regulatory compact. . . . . . . . . . . . . . . . . . . . 45

a. The Commission is not a joint regulatory body. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

b. The Compact provisions do not require reciprocal action to be effective. . . . . . . . . . . 47

c. The Compact does not prohibit unilateral repeal or modification. . . . . . . . . . . . . . . . . . . 48

4. The Compact is an advisory compact with uniform laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

C. The Compact Does Not Preclude the Legislature from Mandating Exclusive Use of Section 171.106’s Gross- Receipts Apportionment Method. . . . . . . . . . . . . . . . . . . . 53

1. Article III.1 does not unambiguously bar the Legislature from enforcing an exclusive apportionment method. . . . . . . . . . . . . . . . . . . . . . . . 54

2. Article III.1 cannot constitutionally require Texas to allow a taxpayer to remove part of its tax base from Texas’s taxing authority. . . . . . . . . . 56

D. The Compact Does Not Supersede Section 171.106 Because Any Conflict Does Not Unconstitutionally Impair Any Contractual Obligations. . . . . . . . . . . . . . . . . 59

viii 1. Binding compacts that Congress has not approved preempt state law only if the law unconstitutionally impairs contractual obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

2. Section 171.106 does not unconstitutionally impair any obligations to EMC under the Compact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

3. EMC waived the Contracts Clause issue. . . . . . . . . 65

III. EMC’s As-Applied Constitutional Challenges Are Jurisdictionally Barred, Waived, And Meritless. . . . . . . . . . . . 66

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

ix INDEX OF AUTHORITIES

Cases

Alabama v. North Carolina, 560 U.S. 330 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 55

Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Basic Capital Mgmt. v. Dynex Commercial, Inc., 348 S.W.3d 894 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

City of Charleston v. Pub. Serv. Comm’n, 57 F.3d 385 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64

Combs v. Chapal Zenray, 357 S.W.3d 751 (Tex. App.—Austin 2011, pet. denied) . . . . . . . . . . . . 40

Combs v. Chevron, Inc., 319 S.W.3d 836 (Tex. App.—Austin 2010, pet. denied) . . . . . . . . . . . . 67

Cuyler v. Adams, 449 U.S. 433 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Employees Ret. Sys. v. Duenez, 288 S.W.3d 905 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-65

Foster v. TDCJ, 344 S.W.3d 543 (Tex. App.—Austin 2011, pet. denied) . . . . . . . . . . . . 26

Gaar, Scott & Co. v. Shannon, 115 S.W. 361 (Tex. Civ. App.—Austin 1908, writ denied), aff’d, 223 U.S. 468 (1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

x Gen. Dynamics Corp. v. Sharp, 919 S.W.2d 861 (Tex. App.—Austin 1996, writ denied) . . . . . . . 2, 65, 69

Gen. Expressways, Inc. v. Iowa Reciprocity Bd., 163 N.W.2d 413 (Iowa 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Gordon v. Lake, 356 S.W.2d 138 (Tex. 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Graphic Packaging Corp. v. Hegar, No. 03-14-00197-CV (Tex. App—Austin) (argued June 3, 2015) . . . xxiii

Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1823) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

IBM v. Dep’t of Treasury, 852 N.W.2d 865 (Mich. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-40

In re Nestle USA, Inc., 359 S.W.3d 207 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

In re Nestle USA, Inc., 387 S.W.3d 610 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 70

In re Park Mem’l Condo. Ass’n, 322 S.W.3d 447 (Tex. App.—Houston [14th Dist.] 2010, no pet.) . . . . 68

Ingram Micro, Inc. v. Dep’t of Treas., No. 11-000035-MT, slip op. (Mich. Ct. Cl. Dec. 19, 2014) . . . . . . . . . . . 46

INOVA Diagnostics, Inc. v. Strayhorn, 166 S.W.3d 394 (Tex. App.—Austin 2005, pet. denied) . . . . . . . . . . 3, 22

xi Jackson v. SOAH, 351 S.W.3d 290 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Kimberly Clark Corp. v. Comm’r of Revenue, No. 8670-R, slip op. (Minn. Tax Ct. June 19, 2015) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 58-59, 64

Liberty Mut. Ins. Co. v. Tex. Dep’t of Ins., 187 S.W.3d 808 (Tex. App.—Austin 2006, pet. denied) . . . . . . . . . . . . 63

McComb v. Wambaugh, 934 F.2d 474 (3d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Moorman Mfg. Co. v. Bair, 437 U.S. 267 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 64, 65

Nat’l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry., 470 U.S. 451 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Ne. Bancorp, Inc. v. Bd. of Governors of Fed. Reserve Sys., 472 U.S. 159 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-47, 49

Nw. Austin MUD No. 1 v. City of Austin, 274 S.W.3d 820 (Tex. App.—Austin 2008, pet. denied) . . . . . . . . . . . . 24

Rathbun v. State, 280 N.W. 35 (Mich. 1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Rosenberg v. MacGinnittie, No. 1414626, slip op. (Ga. Tax Trib. Nov. 25, 2014) . . . . . . . . . . . . 28, 29

Seattle Master Builders Ass’n v. Pac. Nw. Elec. Power & Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-47, 49

State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177 (Tex. 2013) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . 24

xii Sunbeam Envtl. Servs. v. Tex. Workers’ Comp. Ins. Facility, 71 S.W.3d 846 (Tex. App.—Austin 2002, no pet.) . . . . . . . . . . . . . . . . . 66

Tarrant Reg’l Water Dist. v. Hermann, 133 S. Ct. 2120 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 55, 56, 59

U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 44-48, 53, 62

U.S. Trust Co. v. New Jersey, 431 U.S. 1 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-64, 66

Vincent v. Bank of Am., N.A., 109 S.W.3d 856 (Tex. App.—Dallas 2003, pet. denied) . . . . . . . . . . . . . 68

W. Union Tel. Co. v. Kansas, 216 U.S. 1 (1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

W. Union Tel. Co. v. State, 126 S.W. 1197 (Tex. 1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 62

Constitutional Provisions, Statutes, and Rules

1971 Fla. Laws ch. 71-980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1987 Minn. Law ch. 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2010 Utah Laws ch. 155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Act approved Apr. 30, 1897, 25th Leg., R.S., ch. 104, 1897 Tex. Gen. Laws 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

xiii Act approved Mar. 17, 1917, 35th Leg., R.S., ch. 84, 1917 Tex. Gen. Laws 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Act of Aug. 13, 1991, 72d Leg., 1st C.S., ch. 5, 1991 Tex. Gen. Laws 134 . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6-7, 14, 30, 34

Act of July 30, 1959, 56th Leg., 3d C.S., ch. 1, 1959 Tex. Gen. Laws 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 5

Act of Mar. 1, 1989, 71st Leg., R.S., ch. 3, 1989 Tex. Gen. Laws 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 35

Act of Mar. 18, 1919, 36th Leg., R.S., ch. 60, 1919 Tex. Gen. Laws 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Act of Mar. 19, 1987, 70th Leg., R.S., ch. 10, 1987 Tex. Gen. Laws 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Act of May 17, 1967, 60th Leg., R.S., ch. 566, § 1, 1967 Tex. Gen. Laws 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Act of Sept. 6, 1969, 61st Leg., 2d C.S., ch. 1, 1969 Tex. Gen. Laws 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 35

Act of May 2, 2006, 79th Leg., 3d C.S., ch. 1, 2006 Tex. Gen. Laws 1 . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 14, 21, 23, 24, 34

Act of May 30, 1997, 75th Leg., R.S., ch. 1185, § 7, 1997 Tex. Gen. Laws 4569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Act of May 31, 1981, 67th Leg., R.S., ch. 389, § 1, 1981 Tex. Gen. Laws 1490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

ALA. CODE § 40-27-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ALASKA CONST. art. IX, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

xiv ARK. CODE § 26-5-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARK. CONST. art. 16, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

CAL. CONST. art. XIII, § 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

CAL. REV. & TAX CODE § 25128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

COLO. REV. STAT. § 24-60-1301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

COLO. REV. STAT. § 39-22-303.5(4)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D.C. CODE § 47-441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FLA. STAT. § 220.15(4) (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

HAW. CONST. art. VII, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

IDAHO CODE § 63-3027(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ILL. CONST. art. IX, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

MICH. COMP. LAWS § 208.1301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

MICH. CONST. art. IX, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

MINN. CONST. art. X, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

MINN. STAT. § 290.191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

MINN. STAT. § 290.171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

MO. CONST. art. X, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

MONT. CONST. art. VIII, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

N.D. CONST. art. X, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

xv O.C.G.A. § 48-7-27(d)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

OR. REV. STAT § 314.606 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

OR. REV. STAT § 314.650 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

OR. REV. STAT. § 305.653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

S.D. CONST. art. XI, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

TEX. CONST. art. I, § 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

TEX. CONST. art. VIII, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

TEX. FAM. CODE § 60.010, art. XII.A.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

TEX. GOV’T CODE § 311.005(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TEX. GOV’T CODE § 311.025(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TEX. GOV’T CODE § 311.026(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TEX. GOV’T CODE § 510.017, art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

TEX. GOV’T CODE § 510.017, art. XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

TEX. R. APP. P. 38.1(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

TEX. R. APP. P. 7.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TEX. R. CIV. P. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

TEX. TAX CODE § 112.151(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

TEX. TAX CODE § 112.152(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

TEX. TAX CODE § 141.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . xxii, 8, 13, 18, 19, 21

xvi TEX. TAX CODE § 141.001, art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 52

TEX. TAX CODE § 141.001, art. II.4 . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 25, 28

TEX. TAX CODE § 141.001, art. II.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

TEX. TAX CODE § 141.001, art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 30

TEX. TAX CODE § 141.001, art. III.1 . . . . . . . . . . . . . . . . . . . . . 11, 20, 32, 39, 54

TEX. TAX CODE § 141.001, art. III.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. TAX CODE § 141.001, art. III.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20

TEX. TAX CODE § 141.001, art. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 20, 30

TEX. TAX CODE § 141.001, art. IV.2 . . . . . . . . . . . . . . . . . . . . . . . . 10, 20, 21, 22

TEX. TAX CODE § 141.001, art. IV.2-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

TEX. TAX CODE § 141.001, art. IV.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21

TEX. TAX CODE § 141.001, art. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

TEX. TAX CODE § 141.001, art. VI.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. TAX CODE § 141.001, art. VI.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 46

TEX. TAX CODE § 141.001, art. VI.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

TEX. TAX CODE § 141.001, art. VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. TAX CODE § 141.001, art. VII.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

TEX. TAX CODE § 141.001, art. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. TAX CODE § 141.001, art. VIII.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 49

xvii TEX. TAX CODE § 141.001, art. X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. TAX CODE § 141.001, art. X.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 57

TEX. TAX CODE § 141.001, art. X.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 49

TEX. TAX CODE § 141.001, art. XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 57

TEX. TAX CODE § 141.001, art.IV.1(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. TAX CODE § 141.001, art.IV.10-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. TAX CODE § 141.001, arts. II-V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

TEX. TAX CODE § 141.001, arts. I-XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. TAX CODE § 171.002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 21

TEX. TAX CODE § 171.101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 21

TEX. TAX CODE § 171.101(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25

TEX. TAX CODE § 171.101(a)(1)(B)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25

TEX. TAX CODE § 171.101(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. TAX CODE § 171.101(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. TAX CODE § 171.101(B)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25

TEX. TAX CODE § 171.106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

TEX. TAX CODE § 171.106(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

TEX. TAX CODE § 171.106(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 19

xviii TEX. TAX CODE § 171.106(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 19

TEX. TAX CODE § 171.106(d)-(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 19

TEX. TAX CODE § 171.1011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. TAX CODE § 171.1011(e)-(x) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. TAX CODE § 171.1012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. TAX CODE § 171.1013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. TAX CODE § 171.1014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 34

TEX. TAX CODE § 171.1014(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

TEX. TAX CODE § 171.1016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 22

TEX. TAX CODE § 171.1016(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. TAX CODE § 171.1016(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. TAX CODE § 171.1016(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26

TEX. TRANSP. CODE § 523.007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

U.S. CONST. art I, § 10, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

U.S. CONST. art. I, § 10, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

UTAH CODE § 59-1-801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

UTAH CODE § 59-1-801.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

WASH. CONST. art. 7, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

WYO. CONST. art. 15, § 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

xix Other Authorities

BLACK’S LAW DICTIONARY (9th ed. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

BLACK’S LAW DICTIONARY (6th ed. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CAROLINE N. BROUN, ET AL., THE EVOLVING USE AND THE CHANGING ROLE OF INTERSTATE COMPACTS: A PRACTITIONER’S GUIDE (2006) . . . . . . . . . 43, 44, 46, 47, 51, 52, 53, 60

COMPTROLLER’S DECISION NOS. 104,752 & 104,753 (2011) . . . . . . . . . . . . . 41

WILLIAM FLETCHER, FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS (2014) . . . 26

WALTER HELLERSTEIN, STATE TAXATION (3d ed. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Annual Reports, MULTISTATE TAX COMM’N, http://www.mtc.gov/The-Commission/Annual-Report . . . . . . . . . . . . . 13

MULTISTATE TAX COMM’N, FIRST ANNUAL REPORT (1969), available at http://www.mtc. gov/uploadedFiles/ Multistate_Tax_Commission/Resources/Archives/ Annual_Reports/FY67-68.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Member States, MULTISTATE TAX COMM’N, http://www.mtc.gov/ The- Commission/Member-States (last visited July 7, 2015) . . . . . . . . 8

SELECT COMM. ON TAX EQUITY, RETHINKING TEXAS TAXES (Jan. 1989) . . . . . . . . . . . . . . . . . . . . . . . 6, 35

NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION (7th ed. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59-60

xx Kearns B. Taylor, Texas’ Exciting Answer in the Battle With Proponents of Federal Control Over State Taxation of Interstate Commerce, 30 TEX. B.J. 773 (Oct. 1967) . . . . . . . . . . . . . . . 13

TEX. JUR. 3d Statutes § 62 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

UNIF. DIV. OF INCOME FOR TAX PURPOSES ACT, 7A U.L.A. 155 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

David A. Vanderhider, Comment, A Marginal Tax: The New Franchise Tax in Texas, 39 ST. MARY’S L.J. 615 (2008) . . . . . . . . . . . . . . . . . . . . . 22

xxi STATEMENT OF THE C ASE

Nature of the Case: EMC Corporation filed this tax-refund suit against the Comptroller and the Attorney General (collectively, “the Comptroller”) to recover franchise taxes that it paid to the State for report years 2010- 2012. CR.4-10.1 EMC claimed that it was entitled to reduce its franchise-tax liability for those years by electing the three-factor method for apportioning a multistate taxpayer’s “business income” to a state under the Multistate Tax Compact, TEX. TAX CODE § 141.001, rather than using the single-factor gross- receipts method for apportioning margin to Texas required by the franchise-tax statutes, id. § 171.106(a). CR.6.

Trial Court: 353rd Judicial District Court, Travis County The Honorable Darlene Byrne (presiding)

Course of Proceedings: The parties filed cross-motions for summary judgment. CR.666-1165.

Trial Court The trial court granted the Comptroller’s summary- Disposition: judgment motion, denied EMC’s summary-judgment motion, and rendered final judgment for the Comptroller. CR.1172.

1. Citations of the clerk’s record will appear as “CR.[page number].” Citations of the appendix to this brief will appear as “App. [tab letter].”

xxii STATEMENT REGARDING O RAL ARGUMENT

Oral argument is not necessary. All but two pages of the Argument

section in EMC’s opening brief concern the precise issues that the Court will

decide in Graphic Packaging Corp. v. Hegar, No. 03-14-00197-CV, which was

submitted with oral argument on June 3, 2015. EMC Br. 7-20. And, as

discussed below, those two remaining pages concern issues that EMC waived

by failing to present them in its motion for rehearing before the Comptroller or

its petition in this suit. See infra Argument, Part III. Because the Court’s

decision in Graphic Packaging will control the only properly preserved issues

in this case, hearing oral argument will not be an efficient use of the Court’s or

the parties’ resources.

That said, if the Court sets this case for oral argument, the Comptroller

respectfully requests the opportunity to participate.

xxiii ISSUES PRESENTED

This appeal primarily concerns whether a taxpayer may reduce its

franchise-tax liability by choosing to apportion its margin to Texas using the

Multistate Tax Compact’s three-factor method for apportioning business

income for a state income tax, rather than using the single-factor method for

apportioning margin for the franchise tax set forth in section 171.106 of the Tax

Code. If taxpayers must use the single-factor method, EMC further contends

that applying that method to its business in particular violates the Due Process

and Commerce Clauses of the United States Constitution and the Equal and

Uniform Taxation Clause of the Texas Constitution.

1. Does the Compact’s three-factor method for apportioning business income for a state income tax also apply to apportioning margin for the franchise tax?

2. Does section 171.106 prohibit a taxpayer from electing the Compact’s three-factor method to apportion its margin?

3. Does Texas’s membership in the Compact prevent the Legislature from making section 171.106’s single-factor method the exclusive method for apportioning margin?

4. Did EMC preserve its due-process, commerce-clause, and equal-and-uniform-taxation challenges for review?

5. Does application of the single-factor method to EMC violate the Due Process, Commerce, or Equal and Uniform Taxation Clauses?

xxiv No. 03-15-00113-CV

In the Court of Appeals for the Third Judicial District Austin, Texas EMC CORPORATION, Appellant, v.

GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF T EXAS , AND K EN PAXTON, ATTORNEY GENERAL OF THE STATE OF TEXAS , Appellees.

On Appeal from the 353rd Judicial District Court Travis County, Texas

BRIEF OF APPELLEES

TO THE HONORABLE THIRD COURT OF APPEALS :

To accept EMC’s view that it may compute its franchise tax using the

Compact’s three-factor income-apportionment method, the Court would have

to disregard (1) the Tax Code’s command that the only exceptions to the gross-

receipts apportionment method are provided in section 171.106, (2) the

Legislature’s directive that the franchise tax is not an income tax, and (3) the

Compact states’ contrary construction of their agreement over the past 42

years. The Court should reject EMC’s position and affirm the judgment. STATEMENT OF FACTS

I. THE TEXAS FRANCHISE TAX

Since 1893, Texas has imposed a franchise tax on certain business entities

that are organized under Texas law or that operate in Texas. See In re Nestle

USA, Inc., 387 S.W.3d 610, 612-14 (Tex. 2012) (Nestle II). Those entities pay

the franchise tax for the privilege of doing business here. Id. at 622.

The franchise-tax calculation has frequently changed. See id. at 612-16.

Generally, though, it starts with the taxpayer’s “tax base,” which is some

measure of the value of the taxpayer’s entire business during the year. See Gen.

Dynamics Corp. v. Sharp, 919 S.W.2d 861, 863 (Tex. App.—Austin 1996, writ

denied). If the taxpayer transacted business both within and outside Texas, its

tax base must be “apportioned” to Texas to determine the share that may fairly

be attributed to its Texas business and thus taxed by Texas. See id. Finally,

the taxpayer multiplies that Texas portion of its tax base by the tax rate to

compute its tax due. See id. at 864. These components are discussed below.

A. The Tax Base for the Franchise Tax

From 1897 to 1991, the franchise tax base was exclusively some measure

of “capital.” Act approved Apr. 30, 1897, 25th Leg., R.S., ch. 104, § 1, 1897 Tex.

Gen. Laws 140, 141 (“authorized capital stock”); Act of July 30, 1959, 56th Leg.,

2 3d C.S., ch. 1, § 1, 1959 Tex. Gen. Laws 187, 306 (“taxable capital”); Act of May

31, 1981, 67th Leg., R.S., ch. 389, § 1, 1981 Tex. Gen. Laws 1490, 1697 (same).

In 1991, the Legislature added “earned surplus” as an alternate tax base.

Act of Aug. 13, 1991, 72d Leg., 1st C.S., ch. 5, § 8.09, 1991 Tex. Gen. Laws 134,

159-60. Earned surplus was an adjusted version of “reportable federal taxable

income.” Id. Different tax rates applied to capital and earned surplus, and the

taxpayer used the tax base that yielded the higher tax. See id. § 8.03, 1991 Tex.

Gen. Laws 153; INOVA Diagnostics, Inc. v. Strayhorn, 166 S.W.3d 394, 398

(Tex. App.—Austin 2005, pet. denied).

In 2008, “margin” replaced both capital and earned surplus as the

franchise tax’s main tax base. Act of May 2, 2006, 79th Leg., 3d C.S., ch. 1, § 2,

2006 Tex. Gen. Laws 1, 6-7 (eff. Jan. 1, 2008) (codified at TEX. TAX CODE

§ 171.002). The margin calculation begins with “total revenue,” which is derived

by adding together certain income reportable on a federal tax return, then

subtracting bad debts and other items included as revenue on the federal

return. TEX. TAX CODE §§ 171.101, .1011. Receipts associated with various

transactions are also excluded from total revenue. See id. § 171.1011(e)-(x).

Based on the resulting total revenue, the taxpayer’s margin is the smallest of

four amounts: (1) 70% of total revenue; (2) total revenue minus $ 1 million;

3 (3) total revenue minus “costs of goods sold”; or (4) total revenue minus a

capped amount of wages and compensation paid and costs of benefits provided.

Id. §§ 171.101, .1012, .1013.

Also beginning in 2008, a taxpayer whose total revenue does not exceed

$10 million may use total revenue instead of margin as its tax base. Id.

§ 171.1016. Taxpayers using this option—named the “E-Z Computation”—pay

a different tax rate and forgo credits and deductions. Id.

B. Apportionment of the Tax Base for the Franchise Tax

1. The gross-receipts apportionment method

In 1910, the Texas Supreme Court ruled that the franchise tax was

unconstitutional as applied to foreign corporations because it was based on a

corporation’s capital from its entire business, both within and outside Texas.

See W. Union Tel. Co. v. State, 126 S.W. 1197, 1197 (Tex. 1910) (citing W. Union

Tel. Co. v. Kansas, 216 U.S. 1 (1910) (holding that a similar privilege fee violated

the Due Process and Commerce Clauses)).

In response, the Legislature amended the franchise tax to require both

Texas and foreign corporations to “apportion” their capital and to use only the

portion attributable to their Texas business in computing the tax. To do this,

a corporation multiplied its capital by a fraction: the “gross receipts” from its

4 Texas business divided by the gross receipts from its entire business. Act

approved Mar. 17, 1917, 35th Leg., R.S., ch. 84, § 1, 1917 Tex. Gen. Laws 168

(foreign corporations); Act of Mar. 18, 1919, 36th Leg., R.S., ch. 60, § 1, 1919

Tex. Gen. Laws 100 (Texas corporations).

Although the franchise tax’s tax base has changed several times, the

gross-receipts apportionment method has remained constant. The Legislature

retained the gross-receipts fraction as the required method in the 1959 revision,

the 1981 codification, and the 2006 restructuring of the franchise tax. Act of

July 30, 1959, 56th Leg., 3d C.S., ch. 1, § 1, 1959 Tex. Gen. Laws 187, 307-08; Act

of May 31, 1981, 67th Leg., R.S., ch. 389, § 1, 1981 Tex. Gen. Laws 1490, 1698;

Act of May 2, 2006, 79th Leg., 3d C.S., ch. 1, § 5, 2006 Tex. Gen. Laws 1, 21

(codified at TEX. TAX CODE § 171.106).

2. Requests for alternative apportionment (1970-1989)

From 1970 to 1989, a taxpayer could ask the Comptroller to allow it to use

a different apportionment method that would more “fairly represent” its Texas

business. Act of Sept. 6, 1969, 61st Leg., 2d C.S., ch. 1, art. 7, § 1, 1969 Tex.

Gen. Laws 61, 96. Among the options, the taxpayer could request “inclusion of

one or more additional factors [with the gross-receipts fraction].” Id.

5 This provision was later analyzed by the Select Committee on Tax Equity,

a body created in 1987 to study the Texas tax system and its impact on the state

economy. Act of Mar. 19, 1987, 70th Leg., R.S., ch. 10, §§ 1-2, 1987 Tex. Gen.

Laws 27. The Committee recommended eliminating this option because it gave

foreign corporations a tax advantage over Texas businesses:

At the taxpayer’s request, additional factors such as property and payroll can be included in the calculation. . . . [T]here is no incentive to use additional factors unless they result in reduced tax liability. . . . [B]usinesses that profit from the use of additional factors tend to be out-of-state corporations with substantial sales into Texas but more property and payroll in other states. The Committee recommends that the use of additional factors be eliminated.

1 SELECT COMM. ON TAX EQUITY, RETHINKING TEXAS TAXES 49 (Jan. 1989).

In 1989, the Legislature adopted the Committee’s recommendation and

repealed the provision, leaving the gross-receipts fraction as the exclusive

apportionment method. Act of Mar. 1, 1989, 71st Leg., R.S., ch. 3, § 2, 1989 Tex.

Gen. Laws 200.

3. Narrow exceptions to the gross-receipts method

Since 1989, the Legislature has carved out only two exceptions to the

gross-receipts fraction. A tax base derived from sales of services to or for a

regulated investment company is apportioned with a fraction based on company

shares. Act of Aug. 13, 1991, 72d Leg., 1st C.S., ch. 5, § 8.07, 1991 Tex. Gen.

6 Laws 134, 157-58. And a tax base derived from sales of services to an employee

retirement plan is apportioned with a fraction based on plan beneficiaries. Act

of May 30, 1997, 75th Leg., R.S., ch. 1185, § 7, 1997 Tex. Gen. Laws 4569, 4571.

4. Current apportionment statute

Since the tax base changed to margin in 2008, section 171.106 of the Tax

Code has continued to require use of the gross-receipts apportionment method.

TEX. TAX CODE § 171.106(a). The only exceptions are: (1) the different methods

related to investment companies and retirement plans discussed above, id.

§ 171.106(b), (c); and (2) adjustments to the gross-receipts figure for a few

specific entities and transactions, id. § 171.106(d)-(g). An “E-Z Computation”

filer also uses this section to apportion total revenue. Id. § 171.1016(b)(2).

C. Current Calculation of Franchise Tax Due

To calculate its franchise tax, a taxpayer first multiplies its margin by the

gross-receipts fraction to determine “apportioned margin.” Id. § 171.101(a)(2).

From apportioned margin, the taxpayer subtracts any allowable deductions to

obtain “taxable margin.” Id. § 171.101(a)(3). Finally, taxable margin is

multiplied by the tax rate to compute the tax due. Id. § 171.002.

An “E-Z Computation” filer multiplies its total revenue by the gross-

receipts fraction to obtain its “apportioned total revenue.” Id. § 171.1016(b)(2).

7 That “apportioned total revenue” is multiplied by 0.575% to compute the tax

due. Id. § 171.1016(b)(3).

II. THE MULTISTATE TAX C OMPACT

A. Adoption of the Compact

In 1967, Texas adopted the Multistate Tax Compact, an interstate

agreement concerning certain issues in the taxation of multistate taxpayers.

Act of May 17, 1967, 60th Leg., R.S., ch. 566, § 1, 1967 Tex. Gen. Laws 1254,

1254-65. The Compact is codified in section 141.001 of the Tax Code. TEX. TAX

CODE § 141.001 (App. A).

By its terms, id., art. X.1, the Compact became effective in August 1967,

after seven states had enacted it in their state laws, U.S. Steel Corp. v.

Multistate Tax Comm’n, 434 U.S. 452, 454 (1978). Currently, 15 states and the

District of Columbia are members. Member States, MULTISTATE TAX COMM’N,

http://www.mtc.gov/The- Commission/Member-States (last visited July 7, 2015).

Congress never has consented to this Compact under the Constitution’s

Compact Clause. See U.S. Steel, 434 U.S. at 458 n.8.

8 B. The Compact’s Provisions

1. The Compact’s purposes

The Compact’s stated purposes are to: (1) “[f]acilitate proper

determination of state and local tax liability of multistate taxpayers, including

the equitable apportionment of tax bases and settlement of apportionment

disputes”; (2) “[p]romote uniformity or compatibility in significant components

of tax systems”; (3) “[f]acilitate taxpayer convenience and compliance in the

filing of tax returns and in other phases of tax administration”; and (4) “[a]void

duplicative taxation.” TEX. TAX CODE § 141.001, art. I.

2. The Multistate Tax Commission

The Compact creates the Multistate Tax Commission, which is composed

of the member states’ tax administrators. Id., art. VI.1. The Compact

authorizes the Commission to study state and local tax systems, to develop

proposals for increasing uniformity or compatibility of tax laws, and to publish

information to help states implement the Compact and to aid compliance with

tax laws. Id., art. VI.3. The Commission also may draft model tax regulations,

which have no force in a state unless the state adopts them. Id., art. VII. A

state may ask the Commission to audit a taxpayer on its behalf. Id., art. VIII.

9 Still, the Compact grants the Commission no regulatory authority over the

member states. See id., arts. I-XII.

3. The Compact’s income-tax articles

Article IV, titled “Division of Income,” reproduces nearly verbatim the

Uniform Division of Income for Tax Purposes Act (“UDITPA”), a model law

promulgated in 1957. Compare id., art. IV, with UNIF. DIV. OF INCOME FOR

TAX PURPOSES ACT, 7A U.L.A. 155 (2002). Article IV.2 states that, subject to

a few exceptions, a taxpayer “shall allocate and apportion his net income as

provided in this article.” TEX. TAX CODE § 141.001, art. IV.2. Article IV.9

provides that method, which uses the equally weighted average of three factors:

All business income shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three.

Id., art. IV.9. The three factors are fractions representing the proportion of

certain aspects of the taxpayer’s business located in the taxing state: (1) value

of in-state property divided by value of all property, (2) compensation paid in

the state divided by all compensation paid, and (3) gross receipts from in-state

sales divided by gross receipts from all sales. Id., art.IV.1(g), 10-17.

10 Article III, “Elements of Income Tax Laws,” sets forth two “Taxpayer

Option[s].” Id., art. III.1-2. Article III.1 states that a taxpayer subject to a

Compact state’s income tax may elect to apportion its income “in the manner

provided by the laws of such state” (other than the Compact) or using Article

IV’s three-factor apportionment method. Id., art. III.1. Article III.2 prescribes

an alternate income-tax computation for small taxpayers. Id., art. III.2. These

options do not apply to “any tax other than an income tax.” Id., art. III.3.

4. Compact provisions addressing joinder, withdrawal, and severability

A state joins the Compact by enacting it into state law. Id., art. X. A

Compact provision held to violate a state constitution is severable. Id., art. XII.

A state withdraws from the Compact “by enacting a statute repealing the

same.” Id., art. X.2. Nothing in the Compact limits when a state may withdraw

or requires notice of the withdrawal. See id., art. X.

C. State Variations from the Compact’s Income-Tax Articles

In 1971, Florida repealed Articles III and IV of the Compact, 1971 Fla.

Laws ch. 71-980, § 1; App. B at 8, and enacted a mandatory three-factor

apportionment method placing double weight on the sales factor, FLA. STAT.

§ 220.15(4) (1971); App. B at 15. At the following Commission meeting, Florida

11 expressed its view that the repeal was “fully consistent with the principles of the

Multistate Tax Compact.” CR.879. In response, the other 17 member states

unanimously approved a resolution recognizing Florida “as a regular member

in good standing” of the Compact. Id.

Many Compact members followed Florida’s example in some respect,

enacting apportionment laws that disallowed use of Article IV’s equally-

weighted three-factor method and Article III.1’s option to elect that method:

! In 1987, Minnesota repealed Articles III and IV and required apportionment based on a three-factor method that placed greater weight on the sales factor. 1987 Minn. Law ch. 268, art. I, §§ 74-75 (codified at MINN. STAT. §§ 290.171, .191).

! In 1993, California and Oregon disallowed application of Articles III and IV and required apportionment based on a three-factor method that placed greater weight on the sales factor. CAL. REV. & TAX CODE § 25128; OR. REV. STAT §§ 314.606, .650. In 2013, Oregon re-enacted the Compact without Articles III and IV. OR. REV. STAT. § 305.653.

! In 1995, Arkansas amended Article IV to double-weight the sales factor. ARK. CODE § 26-5-101.

! In 1996, Idaho disallowed application of Article III.1 and required apportionment based on a three-factor method that double-weighted the sales factor. IDAHO CODE § 63-3027(i).

! In 2008, Michigan required apportionment based only on the sales factor. MICH. COMP. LAWS § 208.1301.

12 ! In 2009, Colorado repealed Article III.1, COLO REV. STAT. § 24-60-1301, and required apportionment based only on the sales factor, id. § 39-22-303.5(4)(a).

! In 2010, Utah amended Article IV to increase the weight of the sales factor for most taxpayers. 2010 Utah Laws ch. 155 (formerly codified at UTAH CODE § 59-1-801). In 2013, Utah re-enacted the Compact without Articles III and IV. UTAH CODE § 59-1-801.5.

! In 2011, Alabama amended Article IV to double-weight the sales factor. ALA. CODE § 40-27-1.

! In 2013, the District of Columbia re-enacted the Compact without Articles III and IV. D.C. CODE § 47-441.

Consistent with the Commission’s 1972 Florida resolution, there is no record of

any state ever objecting to these variations. See Annual Reports, MULTISTATE

TAX COMM’N, http://www.mtc.gov/The-Commission/Annual-Report.

III. THE FRANCHISE TAX AND THE C OMPACT

When Texas adopted the Compact in 1967, the franchise tax was assessed

only on capital. Thus, although the Compact’s income-tax articles (III and IV)

became part of Texas law, see TEX. TAX CODE § 141.001, they did not apply to

any Texas tax. See Kearns B. Taylor, Texas’ Exciting Answer in the Battle

With Proponents of Federal Control Over State Taxation of Interstate

Commerce, 30 TEX. B.J. 773, 821 (Oct. 1967) (“Texas, of course, not having an

income tax is not affected by the Compact allocation formula.”).

13 The introduction of the “earned surplus” tax base in 1991 might have

implicated Articles III and IV because it was an adjusted version of a taxpayer’s

federal taxable income. But in that same act, the Legislature enacted former

section 171.112(g), which stated: “Chapter 141 does not apply to this chapter.”

Act of Aug. 13, 1991, 72d Leg., 1st C.S., ch. 5, § 8.10, 1991 Tex. Gen. Laws 134,

162. That is, the Compact does not apply to the franchise tax. Id.

When the Legislature changed the tax base to “margin,” it removed the

obsolete references to capital and earned surplus. Act of May 2, 2006, 79th

Leg., 3d C.S., ch. 1, §§ 2-7, 2006 Tex. Gen. Laws 1, 1-35. Among those deletions

was the repeal of all of section 171.112 (“Gross Receipts for Taxable Capital”),

including subsection (g)’s proviso that “Chapter 141 does not apply to this

chapter.” Id. § 5, 2006 Tex. Gen. Laws 28. The same act specified, though, that

“[t]he franchise tax imposed by Chapter 171, Tax Code, as amended by this Act,

is not an income tax.” Id. § 21, 2006 Tex. Gen. Laws 38 (emphasis added).

The 2006 legislation also added a reference to the Compact. Under new

section 171.1014, taxpayers in an affiliated group must file a combined report.

TEX. TAX CODE § 171.1014(a). But a combined group may not include a taxable

entity that conducts business outside the United States “if 80 percent or more

of the taxable entity’s property and payroll, as determined by factoring under

14 Chapter 141, are assigned to locations outside the United States.” Id. Chapter

171 otherwise does not refer to the Compact.

IV. EMC’S TAX-REFUND SUIT

For report years 2010 through 2012, EMC calculated its franchise tax

using the gross-receipts apportionment method required by section 171.106.

CR.716. EMC later filed amended reports for those years that re-apportioned

its margin using the Compact’s three-factor income-apportionment method.

CR.717. Based on those amended reports, EMC filed refund claims of

$1,132,972.54 (2010), $2,110,606.50 (2011), and $2,305,684.62 (2012). Id.

The Comptroller denied EMC’s refund claims, reasoning that section

171.106 required EMC to use the gross-receipts method to apportion its

margin. CR.1139-42.

EMC filed a motion for rehearing with the Comptroller. CR.8-10. The

sole ground of error presented in the motion was: “Texas is required to allow

taxpayers to follow Article IV of the Multistate Tax Compact since Texas was

a member of the compact for the years at issue.” CR.8. The Comptroller

denied the motion. CR.718.

EMC then filed this tax-refund suit. CR.4-10. EMC sought to recover

$5,549,263.66—the sum of its refund claims—on the sole ground that, under the

15 Compact, Texas was required to allow EMC to apportion its margin using the

Compact’s three-factor income-apportionment method. CR.5-6.

The parties filed cross-motions for summary judgment. CR.666-1165.

The district court granted the Comptroller’s motion, denied EMC’s motion, and

rendered final judgment for the Comptroller. CR.1172. This appeal followed.

CR.1166.

SUMMARY OF THE ARGUMENT

As a matter of Texas law, EMC may not compute its franchise tax by

invoking the “taxpayer option” in Article III.1 of the Compact and applying

Article IV’s income-apportionment method. Section 171.106 of the Tax Code

compels EMC to apportion its margin to Texas using that statute’s gross-

receipts method. But even if EMC could venture outside of section 171.106 for

an apportionment method, the Compact would not be an option because, as the

Legislature has explicitly stated, the franchise tax is not an income tax. And to

the extent that section 171.106 conflicts with the Compact’s application, section

171.106 prevails as the later-enacted, more specific statute.

The Compact’s status as an interstate compact does not mean that it

trumps section 171.106 here. The Compact’s structure and terms show that it

is only an advisory agreement that contains uniform laws, not a regulatory

16 compact that binds its member states. Indeed, those states have expressly and

consistently treated the Compact as a non-binding instrument. At least 12

(including Texas) have enacted laws that disable Article III.1’s taxpayer option.

Even if the Compact were binding, Article III.1 would not preclude the

Legislature from requiring taxpayers to use the gross-receipts apportionment

method. That article purports to incorporate state law as an apportionment

option, but it does not account for a law like section 171.106 that by its very

terms is not optional. Nor can Article III.1 surmount the Texas Constitution’s

prohibition against contractual suspensions of the state’s taxing authority.

Moreover, any conflict with the Compact would not automatically render

section 171.106 invalid. The statute would yield only to the extent that it

qualified as an unconstitutional impairment of contractual obligations under the

Compact—a standard that EMC cannot meet here.

Finally, the Court should reject EMC’s arguments based on the Due

Process, Commerce, and Equal and Uniform Taxation Clauses. EMC waived

those issues by failing to raise them in its motion for rehearing before the

Comptroller and its petition in this suit. And EMC has not established a

violation of those provisions in any event.

17 ARGUMENT

I. IN C ALCULATING ITS FRANCHISE TAX, EMC MUST APPORTION ITS MARGIN TO TEXAS USING THE GROSS-RECEIPTS METHOD IN SECTION 171.106 OF THE TAX C ODE.

EMC claims that, in computing its franchise tax, it may apportion its

margin to Texas pursuant to the Compact, as codified in section 141.001 of the

Tax Code. EMC Br. 7-10. Specifically, EMC contends it may exercise the

“option” in Article III.1 of the Compact to use Article IV’s three-factor method

for apportioning “income.” Id. As a matter of Texas law, that argument fails

because (1) section 171.106 of the Tax Code requires taxpayers to apportion

margin using the gross-receipts method, subject only to a limited set of

exceptions that does not include the Compact; (2) Articles III and IV of the

Compact do not apply to the franchise tax because it is not an income tax; and

(3) section 171.106’s mandatory language prevails over any conflicting provision

outside of the franchise-tax statutes.

A. Section 171.106 Requires Taxpayers to Apportion Their Margin Using the Gross-Receipts Method, Subject Only to Certain Exceptions Provided in That Section.

Section 171.106(a) of the Tax Code requires taxpayers to apportion their

margin to Texas using the gross-receipts method, unless one of the exceptions

in section 171.106 applies:

18 Except as provided by this section, a taxable entity’s margin is apportioned to this state to determine the amount of tax imposed under Section 171.002 by multiplying the margin by a fraction, the numerator of which is the taxable entity’s gross receipts from business done in this state, as determined under Section 171.103, and the denominator of which is the taxable entity’s gross receipts from its entire business, as determined under Section 171.105.

TEX. TAX CODE § 171.106(a) (emphasis added). The only exceptions “provided

by this section” are: (1) different apportionment fractions related to investment

companies and retirement plans, id. § 171.106(b), (c); and (2) changes to the

gross-receipts figure for banks, defense readjustment projects, sellers of loans

or securities, and internet hosts, id. § 171.106(d)-(g).

This statute—which EMC concedes is “unambiguous,” EMC Br.

9—prohibits taxpayers from using the Compact’s income-apportionment

method to apportion their margin for the franchise tax. It permits exceptions

to the gross-receipts method only as “provided by this section,” TEX. TAX CODE

§ 171.106(a) (emphasis added), whereas the Compact is located in another

section of the Tax Code, id. § 141.001. And nothing in section 171.106 refers to

or incorporates section 141.001 as one of the allowed exceptions. Id. § 171.106.

Thus, section 171.106(a) forecloses EMC’s attempt to use the Compact’s

income-apportionment method.

19 B. The Compact’s Three-Factor Income-Apportionment Method Does Not Apply to the Franchise Tax Because It Is Not an Income Tax.

EMC may not use the Compact’s three-factor apportionment method for

a second reason. That method applies only to the apportionment of “income”

for an “income tax,” id. § 141.001, arts. III, IV, not the apportionment of margin

for the franchise tax.

1. Article III.1’s “taxpayer option” and Article IV’s apportionment method apply only to apportionment of “income” for a state’s “income tax.”

Articles III and IV of the Compact apply only to a member state’s

“income tax.” Article III, captioned “Elements of Income Tax Laws,” states

that “[n]othing in this article relates to the reporting or payment of any tax

other than an income tax.” Id., art. III.3. Similarly, Article IV, titled “Division

of Income,” covers only a “taxpayer having income from business activity which

is taxable both within and without this state.” Id., art. IV.2 (emphases added).

Predictably, then, the apportionment methods in Articles III and IV

address only the apportionment of “income.” The Article III.1 option states

that a taxpayer “may elect to apportion and allocate his income in the manner

provided by the laws of such state” or “in accordance with Article IV.” Id., art.

III.1. Under Article IV, a taxpayer “shall allocate and apportion his net income

20 as provided in this article,” id., art. IV.2, which states that “business income

shall be apportioned to this state by multiplying the income by a fraction”—the

equally weighted average of the property, payroll, and sales factors. Id., art.

IV.9.

2. The Texas franchise tax is not an “income tax” and does not involve the apportionment of “income.”

Article III.1’s “taxpayer option” and Article IV’s apportionment method

do not apply to the franchise tax because it does not impose an “income tax” or

involve apportioning a tax base of “income,” “net income,” or “business income.”

The Legislature made this distinction clear when it revised the franchise

tax to its current form: “The franchise tax imposed by Chapter 171, Tax Code,

as amended by this Act, is not an income tax.” Act of May 2, 2006, 79th Leg.,

3d C.S., ch. 1, § 21, 2006 Tex. Gen. Laws 1, 38 (emphasis added). Given that

plain statement, the Legislature could not possibly have intended that the

franchise tax would be subject to the Compact articles in section 141.001 of the

Tax Code that relate exclusively to an “income tax.”

Moreover, the franchise tax is assessed on and requires apportionment

of “margin,” which differs from the “net income” covered by Article IV’s

apportionment method. Compare TEX. TAX CODE §§ 171.002, .101, .106, with

21 id. § 141.001, art. IV.2. This Court has defined “net income” as the “‘excess of

all revenues and gains for a period over all expenses and losses of the period.’”

INOVA Diagnostics, 166 S.W.3d at 401 n.7 (quoting BLACK’S LAW DICTIONARY

1040 (6th ed. 1990)). By contrast, “margin” never involves deducting “all

expenses and losses.” Some taxpayers do not deduct their expenses to compute

margin; they calculate margin as 70% of total revenue or subtract $1 million

from total revenue, regardless of their expenses. TEX. TAX CODE

§ 171.101(a)(1)(A), (B)(i). And those taxpayers that deduct some expenses to

compute margin still do not deduct “all” expenses; they deduct only select

expenses—“costs of goods sold” or “compensation.” Id. § 171.101(a)(1)(B)(ii).

For that reason, a taxpayer may have a positive margin, and thus owe franchise

tax, even though it has no net income for the report year. See David A.

Vanderhider, Comment, A Marginal Tax: The New Franchise Tax in Texas,

39 ST. MARY’S L.J. 615, 646-47 (2008) (observing that “[t]he fact that the margin

tax could apply to a company without profits, therefore, undermines the

argument that it is an income tax in disguise”).

Similarly, the “total revenue” tax base used for the alternate “E-Z

Computation” also differs from the “net income” covered by Article IV.

Compare TEX. TAX CODE § 171.1016, with id. § 141.001, art. IV.2. In contrast

22 to a net-income calculation, an E-Z filer may not make deductions from total

revenue. Id. § 171.1016(c).

3. The Compact’s “income tax” definition does not expand Articles III and IV to include the franchise tax.

EMC counters that the Compact defines “income tax” broadly enough to

cover the franchise tax. EMC Br. 15-16. That definition states:

“Income tax” means a tax imposed on or measured by net income including any tax imposed on or measured by an amount arrived at by deducting expenses from gross income, one or more forms of which expenses are not specifically and directly related to particular transactions.

TEX. TAX CODE § 141.001, art. II.4. Based on this definition alone, EMC urges,

Articles III and IV apply to the franchise tax, EMC Br. 15-16, and (presumably)

we should read those articles’ references to apportionment of “income,” “net

income,” and “business income” to mean “margin” or “total revenue” to make

them fit. EMC is wrong.

a. Texas law establishes that the franchise tax does not meet the Compact’s “income tax” definition.

The Legislature already has determined that the franchise tax falls

outside the Compact’s “income tax” definition by decreeing that “[t]he franchise

tax . . . is not an income tax.” Act of May 2, 2006, 79th Leg., 3d C.S., ch. 1, § 21,

2006 Tex. Gen. Laws 1, 38. In enacting that law, the Legislature is presumed

23 to have been aware of the Compact’s definitions. Nw. Austin MUD No. 1 v.

City of Austin, 274 S.W.3d 820, 828 (Tex. App.—Austin 2008, pet. denied). That

presumption cannot be rebutted because the Legislature referred to the

Compact in the same act, adapting two of Article IV’s “factors” to classify

taxpayers for combined-reporting purposes. Act of May 2, 2006, 79th Leg., 3d

C.S., ch. 1, § 5, 2006 Tex. Gen. Laws 1, 17 (codified at TEX. TAX CODE

§ 171.1014). By legislating that the franchise tax “is not an income tax,” without

qualification, the Legislature foreclosed the possibility that a Tax Code

provision could define that tax as an “income tax.”

b. The franchise tax does not meet the Compact’s definition of an “income tax” on its own terms.

Even apart from the Legislature’s conclusive statement, the franchise tax

does not satisfy the Compact’s “income tax” definition on its own terms. The

Compact defines “income tax” principally as “a tax imposed on or measured by

net income.” TEX. TAX CODE § 141.001, art. II.4. Because the Compact does

not define “net income,” that phrase takes its ordinary meaning. State v.

$1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex. 2013) (per curiam). As

discussed above, the franchise tax is not imposed on or measured by “net

income,” as that phrase is commonly understood. See supra Part I.B.2.

24 EMC argues that the definition’s “including” clause captures the

franchise tax. EMC Br. 15-16. Under that clause, an “income tax” includes

“any tax imposed on or measured by an amount arrived at by deducting

expenses from gross income, one or more forms of which expenses are not

specifically and directly related to particular transactions.” TEX. TAX CODE

§ 141.001, art. II.4. That language does not help EMC.

Again, some taxpayers do not deduct any expenses to arrive at margin:

those that compute margin as (1) 70% of total revenue or (2) total revenue

minus $1 million. Id. § 171.101(a)(1)(A), (B)(i). EMC tries to dodge that

problem by reframing the first calculation as a “deduction” of 30% of total

revenue. EMC Br. 15. But the Compact’s “income tax” definition requires

deduction of “expenses,” not prescribed percentages of revenue or dollar

amounts. TEX. TAX CODE § 141.001, art. II.4.

The other taxpayers who use margin do not arrive at that figure “by

deducting expenses from gross income.” They calculate margin by deducting

one type of expense from total revenue: either “costs of goods sold” or

“compensation.” Id. § 171.101(a)(1)(B)(ii). The Compact’s “income tax”

definition would cover those taxpayers only if it could be rewritten to include

“an amount arrived at by deducting [any] expense[] from gross income.” See

25 Foster v. TDCJ, 344 S.W.3d 543, 548 (Tex. App.—Austin 2011, pet. denied) (“We

are not free to rewrite the statute in the guise of construing it.”). That rewrite

also would remove the definition too far from its main clause, which defines an

“income tax” as one imposed on “net income.” The “including” clause may

“enlarge” the meaning of “net income,” not transmogrify it. See TEX. GOV’T

CODE § 311.005(13) (noting that “including” is a “term[] of enlargement”).

Finally, an “E-Z” taxpayer computes its franchise tax based on “total

revenue,” from which no deductions of expenses are permitted. TEX. TAX CODE

§ 171.1016(c).

Respected treatises agree that the Compact’s “income tax” definition does

not include the franchise tax. One adopts the Compact definition and notes that,

although “[t]he majority of states have statutes imposing an income tax on

corporations,” “[t]he states without a corporate income tax are Nevada, Texas,

and Washington.” 14A WILLIAM FLETCHER, FLETCHER CYCLOPEDIA OF THE

LAW OF CORPORATIONS § 6904.50 & nn.1-2 (2014) (emphases added). Another

observes that “there is considerable doubt as to whether the Texas margins tax

constitutes a tax on ‘income’ under the Compact.” WALTER HELLERSTEIN,

STATE TAXATION ¶ 9.01 (3d ed. 2014). In sum, the franchise tax is a unique tax

that does not qualify as an “income tax,” even as defined by the Compact.

26 4. The Compact’s definition of “gross receipts tax” does not support EMC’s argument that the franchise tax falls within the Compact’s “income tax” definition.

EMC also cites the Compact’s definition of a “gross receipts tax,”

apparently to imply that, because the franchise tax does not meet that

definition, it must be categorized as an “income tax.” See EMC Br. 16. But the

Compact does not demand that a tax be classified as either a “gross receipts

tax” or an “income tax.” The Compact defines “tax” as “an income tax, capital

stock tax, gross receipts tax, sales tax, use tax, and any other tax which has a

multistate impact.” TEX. TAX CODE § 141.001, art. II.9 (emphasis added). The

Compact’s drafters thus anticipated that some taxes would not fit within a

defined category. The franchise tax is an example, because generally it does not

satisfy the Compact’s definitions of “income tax” or “gross receipts tax,” but

instead is a hybrid of both (except the E-Z computation, which resembles a

gross-receipts tax). Accordingly, the “gross receipts tax” definition does not

advance EMC’s argument.

5. The Georgia Tax Tribunal’s analysis in Rosenberg v. MacGinnittie is inapposite.

Finally, EMC asserts that the Georgia Tax Tribunal “has construed the

Texas franchise tax as an ‘income tax,’ to which the Multistate Tax Compact

27 election is applicable.” EMC Br. 19 (citing Rosenberg v. MacGinnittie, No.

1414626, slip op. (Ga. Tax Trib. Nov. 25, 2014) (found at CR.1079-1122)). EMC

is wrong.

Rosenberg did not address whether the Compact applies to Texas’s

franchise tax; in fact, the opinion did not even mention the Compact. Nor did

Rosenberg concern whether the franchise tax is an “income tax” in any general

sense. CR.1119 (explaining that “the issue in this case is not whether the Texas

Franchise Tax is an ‘income tax.’”).

At issue in Rosenberg was whether the Texas franchise tax qualified as

a “‘tax on or measured by income’” under a Georgia tax statute. CR.1088

(quoting O.C.G.A. § 48-7-27(d)(1)(C)). If it did, the taxpayer could make an

adjustment for its Texas franchise-tax payments in computing its Georgia

income tax. Id. The tribunal held that the Texas franchise tax did qualify,

primarily because the margin calculation starts with “total revenue,” which is

the sum of relevant items reported as “gross income” on a federal tax return.

CR.1097-1100.

Rosenberg’s analysis has no bearing on this case. Whereas Rosenberg

concerned whether the Texas franchise tax is a “tax on or measured by

income,” CR.1088 (emphasis added), the Compact defines an “income tax” as

28 a “a tax imposed on or measured by net income,” TEX. TAX CODE § 141.001, art.

II.4 (emphasis added). The Rosenberg tribunal itself specifically distinguished

“income” from “net income,” CR.1103-04, and concluded that whether the Texas

franchise tax is measured by “net income” was irrelevant to the question before

it, CR.1102-12. For that reason, it specifically declined to follow decisions from

other state revenue departments holding that the Texas franchise tax is not

imposed on or measured by “net income.” CR.1115-16. Because the Compact

likewise defines its reach in terms of “net income,” Rosenberg is inapposite.

C. Section 171.106’s Mandate to Use the Gross-Receipts Method Prevails over Any Conflicting Language in the Compact.

EMC’s arguments that the Compact’s “taxpayer option” and income-

apportionment method apply to the franchise tax do not help its cause in any

event. Under Texas law, section 171.106’s specific mandate to use the gross-

receipts method prevails over any conflicting text in the Compact.

1. As the later-enacted, more specific statute, section 171.106(a) prevails over the Compact.

Reading Articles III and IV of the Compact to provide another method

of apportioning margin creates an irreconcilable conflict with section 171.106(a)

of the Tax Code. If a taxpayer may elect under Article III.1 to apportion its

margin using Article IV’s three-factor income-apportionment method, as EMC

29 urges, that would negate section 171.106(a)’s directive to apportion margin

using the gross-receipts method “[e]xcept as provided by this section.” See

TEX. TAX CODE § 171.106(a) (emphasis added).

The Code Construction Act resolves any conflict resulting from EMC’s

interpretation in favor of section 171.106(a), in two respects. First, “if statutes

enacted at the same or different sessions of the legislature are irreconcilable,

the statute latest in date of enactment prevails.” TEX. GOV’T CODE § 311.025(a).

The Legislature adopted the Compact in 1967, but added the “except as

provided” clause to section 171.106 in 1991.2 Second, if a general provision

irreconcilably conflicts with a special provision, “the special or local provision

prevails as an exception to the general provision.” TEX. GOV’T CODE

§ 311.026(b); see also Jackson v. SOAH, 351 S.W.3d 290, 297 (Tex. 2011).

Section 171.106 specifically concerns the apportionment of margin for the

franchise tax. TEX. TAX CODE § 171.106. By contrast, Articles III and IV of the

Compact concern a category of taxes that qualify as “income taxes.” Id.

§ 141.001, arts. III-IV.

2. Act of Aug. 13, 1991, 72d Leg., 1st C.S., ch. 5, § 8.07, 1991 Tex. Gen. Laws 134, 157-58 (codified at TEX. TAX CODE § 171.106(a)).

30 2. Section 171.106(a) and the Compact cannot be harmonized so that both apply to the franchise tax.

EMC counters that the Court need not reach the construction rules just

discussed because section 171.106(a) and the Compact do not irreconcilably

conflict and “can be harmonized to reconcile the various provisions and stand

together.” EMC Br. 11. Of course, the Legislature already has harmonized the

statutes by declaring that the franchise tax is not an income tax. See supra Part

I.B.2. But even assuming that Article III.1’s “taxpayer option” and Article IV’s

income-apportionment method could apply to the franchise tax, those provisions

cannot be reconciled with section 171.106(a).

EMC’s harmonizing argument hinges on semantics. First, EMC heralds

that “[t]here is no overriding mandate in Section 171.106(a) that taxpayers must

use the Texas formula instead of the Multistate Tax Compact formula.” EMC

Br. 9. But section 171.106(a) expressly requires all taxpayers to use the gross-

receipts method “[e]xcept as provided by this section,” and the Compact is not

one of the provided exceptions. TEX. TAX CODE § 171.106(a). EMC then offers

that using the Compact’s method would not constitute an exception to section

171.106(a)’s gross-receipts method, but an “equally enforceable alternative.”

EMC Br. 9, 10. That is no distinction at all. If a taxpayer can apportion its

31 margin using the Compact’s three-factor income-apportionment method, then

its margin is not “apportioned to this state . . . by multiplying the margin by [the

gross-receipts] fraction,” TEX. TAX CODE § 171.106(a), creating an unrecognized

“exception” to that section’s general rule.

EMC further claims that Article III.1’s “taxpayer option” harmonizes the

statutes “because a taxpayer that does not elect to use the Multistate Tax

Compact formula effectively elects to use the Texas formula.” EMC Br. 10.

But Article III.1 does not do the harmonizing work that EMC ascribes to it.

Article III.1 presumes that a state’s tax laws (outside the Compact) merely

“provide[]” a different “manner” of apportioning income. TEX. TAX CODE

§ 141.001, art. III.1. Article III.1 does not address the situation in which a

state’s tax law expressly makes an apportionment method exclusive, as section

171.106(a) does. And neither Article III.1 nor any other Compact provision

contains language that resolves that conflict. There is no way to read the Tax

Code as allowing taxpayers to elect to apportion margin using the Compact’s

income-apportionment method and still give full meaning to the words “[e]xcept

as provided in this section” in section 171.106(a).

32 3. The presumption against implied repeals does not support EMC’s reading of the Tax Code.

EMC next asserts that “the only argument” supporting the Comptroller’s

position is that section 171.106(a) impliedly repealed section 141.001 of the Tax

Code, at least as applied to the franchise tax, and that the presumption against

implied repeals should defeat that argument. EMC Br. 10-11. That contention

fails on several fronts.

As an initial matter, the Court also can agree with the Comptroller by

recognizing, as the Legislature did, that the franchise tax is not an income tax.

See supra Part I.B. That holding would render Compact Articles III and IV in

section 141.001 inapplicable to the franchise tax, not impliedly repealed.

Regardless, EMC admits that implied repeals are merely “disfavor[ed],”

not forbidden. EMC Br. 10. “Where a later enactment is intended to embrace

all the law upon the subject with which it deals, it repeals all former laws

relating to the same subject.” Gordon v. Lake, 356 S.W.2d 138, 139 (Tex. 1962).

To the extent Articles III and IV of the Compact ever applied to the franchise

tax, section 171.106’s later-enacted “except as provided” clause embraces all

apportionment options for the franchise tax, and thus necessarily repeals those

articles’ application.

33 More importantly, whether an implied repeal occurred ultimately “is a

matter of legislative intent.” TEX. JUR. 3d Statutes § 62 (2015). The Legislature

never has intended to apply Article III.1’s “taxpayer option” or Article IV’s

income-apportionment method to the franchise tax. When Texas adopted the

Compact, Articles III and IV did not apply to the franchise tax because it was

then imposed on capital, not income. When the Legislature added a tax base

resembling income—“earned surplus”—it simultaneously enacted former

section 171.112(g), which provided that “Chapter 141 [the Compact] does not

apply to this chapter.” Act of Aug. 13, 1991, 72d Leg., 1st C.S., ch. 5, §§ 8.09,

.10, 1991 Tex. Gen. Laws 134, 159-60, 162. And when the Legislature replaced

“earned surplus” with a tax base (margin) that rendered the tax “not an income

tax,” it sensibly repealed former section 171.112(g). Act of May 2, 2006, 79th

Leg., 3d C.S., ch. 1, §§ 5, 21, 2006 Tex. Gen. Laws 1, 28, 38. After all, if the

franchise tax no longer taxed income, Articles III and IV did not apply by their

own terms. Also, removing the total ban against chapter 141’s application paved

the way for the same legislation to borrow two of Article IV’s factors to classify

a taxpayer for combined-reporting purposes. See TEX. TAX CODE § 171.1014.

When the Legislature wanted to provide a generally available alternative

to the gross-receipts method, it did so expressly in the franchise-tax statutes.

34 From 1970 to 1989, the Legislature allowed taxpayers to ask the Comptroller

to include factors other than gross receipts in the apportionment fraction. Act

of Sept. 6, 1969, 61st Leg., 2d C.S., ch. 1, art. 7, § 1, 1969 Tex. Gen. Laws 61, 96,

repealed by Act of Mar. 1, 1989, 71st Leg., R.S., ch. 3, § 2, 1989 Tex. Gen. Laws

200, 200. The Legislature revoked that option at the urging of the Select

Committee on Tax Equity, which recommended that taxpayers not be allowed

to reduce their tax by requesting the addition of property and payroll factors

to the apportionment method. 1 SELECT COMM. ON TAX EQUITY, RETHINKING

TEXAS TAXES 49 (Jan. 1989). Nothing in the franchise-tax statutes suggests

that the Legislature has since reversed that policy and once again permits

taxpayers to use a method with property and payroll factors, such as the

Compact’s, and now at their option without Comptroller approval.

4. IBM v. Department of Treasury is distinguishable.

EMC suggests that the Court seek guidance on the statutory-construction

issue from IBM v. Department of Treasury, 852 N.W.2d 865 (Mich. 2014),

calling it “an identical case” and involving a “directly analogous” situation.

EMC Br. 16-18. But IBM is largely distinguishable, and the reasoning on which

EMC relies is unpersuasive.

35 a. The Michigan Supreme Court was evenly divided on the implied-repeal issue.

As a threshold matter, EMC inaccurately cites IBM as a controlling

opinion of the Michigan Supreme Court. Id. To be clear, a three-justice

plurality opined that one may harmonize the Compact and Michigan’s

mandatory sales-factor apportionment statute by treating the mandatory sales-

factor method as an option that a taxpayer may elect under Article III.1 of the

Compact. 852 N.W.2d at 871-76 (plurality op.) (Viviano, J., joined by

Cavanaugh and Markman, JJ.). The same number of justices disagreed,

reasoning that (1) reading the mandatory sales-factor method as optional does

not harmonize the statutes; and (2) as the later-enacted statute, the mandatory

sales-factor method impliedly, but necessarily, repealed Article III.1’s

“taxpayer option.” Id. at 882-85 (McCormack, J., dissenting, joined by Young,

C.J., and Kelly, J.).

The remaining justice stated that the implied-repeal issue was “a very

close question” that he did not need to reach because of an intervening

legislative act. Id. at 881-82 (Zahra, J., concurring). Specifically, the Michigan

Legislature directly amended the Compact to provide that Article IV’s three-

factor method would be unavailable beginning in 2011. Id. By doing so, Justice

36 Zahra reasoned, the Legislature had affirmatively created a pre-2011 “window”

(which encompassed the refund claims at issue) in which the Compact’s

“taxpayer option” would be available. Id.

Because the Texas Legislature never has affirmatively created a window

in which the Compact’s “taxpayer option” was operative, Justice Zahra’s

decisive concurrence is inapposite. What remains of IBM’s “guidance,” then,

is an evenly divided court on the implied-repeal issue. Of those opinions, the

Comptroller maintains that Justice McCormack had the better view: treating

a mandatory apportionment method as optional is not a “harmonious

construction”; rather, the mandatory apportionment statute should prevail as

the later enacted statute. Id. at 882-85 (McCormack, J., dissenting).

b. The IBM plurality opinion hinges on Michigan’s distinct tax history.

In any event, the IBM plurality opinion offers EMC no help. The

plurality began its discussion by noting that “the history of business taxation in

Michigan” is “important to our analysis in this case.” Id. at 869 (plurality op.).

Specifically, the plurality stressed that history’s role in the statutory-

construction analysis because “‘[t]he endeavor should be made, by tracing the

history of legislation on the subject, to ascertain the uniform and consistent

37 purpose of the legislature, or to discover how the policy of the legislature with

reference to the subject matter has been changed or modified from time to

time.’” Id. at 872 (quoting Rathbun v. State, 280 N.W. 35, 43 (Mich. 1938)).

That history led the plurality to conclude that the Michigan Legislature

“uniform[ly] and consistent[ly]” intended “for the Compact’s election provision

to operate alongside Michigan’s tax acts.” Id. at 874.

Texas’s history of business taxation does not support the same conclusion.

For example, when Michigan adopted the Compact, it already had an income

tax to which Articles III and IV would apply. Id. at 870. By contrast, when

Texas adopted the Compact, it had nothing even resembling an income tax,

meaning that Articles III and IV were inoperative when enacted. See supra

Part I.C.3. Also, as the IBM plurality emphasized, “[t]hroughout the evolution

of [Michigan’s] method of business taxation, the Compact has remained in

effect.” 852 N.W.2d at 871 (plurality op.). But in Texas, when the Legislature

added the earned-surplus tax base that potentially qualified the franchise tax

as an income tax, it simultaneously overrode the Compact’s application by

enacting former section 171.112(g). See supra Part I.C.3. And while Michigan

continues to “allow[] a taxpayer to petition to use another apportionment

method,” 852 N.W.2d at 875 n.55 (plurality op.), Texas revoked that option in

38 1989 specifically to preclude foreign corporations from using property and

payroll factors to apportion their tax bases, see supra Part I.C.3.

In sum, in no sense does the history of Texas’s franchise tax reveal a

“uniform and consistent purpose” by the Legislature to allow taxpayers to

invoke the Compact’s “taxpayer option” and use its three-factor income-

apportionment method. To the contrary, the Legislature has uniformly and

consistently acted to preclude application of Articles III and IV to the franchise

tax.

c. The IBM plurality misconstrued Article III.1.

Finally, the IBM plurality’s analysis is unpersuasive. To support its view

that the Compact may be reconciled with Michigan’s mandatory sales-factor

apportionment method, the plurality reasoned that Article III.1 “contemplat[es]

the future enactment of a state income tax with a mandatory apportionment

formula different from the Compact’s.” 852 N.W.2d at 874 (plurality op.)

(emphasis added). Article III.1 says no such thing. Again, it presumes only

that a state’s tax laws (outside the Compact) “provide[]” a different “manner”

of apportioning income. TEX. TAX CODE § 141.001, art. III.1. It does not

address the situation in which a state’s tax law expressly makes an

39 apportionment method exclusive, as section 171.106(a) does. The Court should

decline to follow the IBM plurality’s misreading of the Compact.

5. The rule that ambiguous tax statutes must be construed in taxpayers’ favor does not apply here.

Finally, EMC suggests that, to the extent section 171.106’s effect on the

Compact’s application is ambiguous, the Court must resolve that ambiguity in

EMC’s favor by applying the rule that “[a]ny ambiguity in the Tax Code

regarding the scope of taxation must be resolved in favor of taxpayers.” EMC

Br. 8. That is incorrect.

The rule EMC invokes comes into play “only when doubt about a statute’s

application remains after the dominant rules of construction have been applied.”

Combs v. Chapal Zenray, 357 S.W.3d 751, 756 (Tex. App.—Austin 2011, pet.

denied). One such “dominant rule” requires deference to the Comptroller’s

construction of an ambiguous tax statute if that construction appears in a

“formal opinion[] adopted after formal proceedings,” is “reasonable,” and does

not contradict the statute’s plain language. Id. (internal quotation marks and

citation omitted).

The conditions for agency deference are all met here. The Comptroller

resolved this specific issue in a formal decision issued after a formal hearing,

40 concluding that a taxpayer “may not elect the MTC three-factor apportionment

formula and is required to use the single-factor method” in section 171.106.

COMPTROLLER’S DECISION NOS. 104,752 & 104,753 (2011) (App. C). That

conclusion is reasonable—it comports with the Legislature’s express

understanding that the franchise tax is not an income tax and the longstanding

policy against allowing taxpayers to use an alternate apportionment method.

See supra Parts I.B.2, C.3. And the Comptroller’s position does not contradict

the Tax Code’s plain text. To the contrary, his reading enforces section

171.106’s directive that any exceptions to the gross-receipts apportionment

method must be provided by that section. TEX. TAX CODE § 171.106(a).

II. TEXAS’S MEMBERSHIP IN THE C OMPACT D OES NOT PRECLUDE THE LEGISLATURE FROM R EQUIRING A TAXPAYER TO U SE THE GROSS- RECEIPTS METHOD TO APPORTION MARGIN.

In the alternative, EMC urges that any Texas law that forbids it to invoke

Article III.1’s “taxpayer option” and use Article IV’s income-apportionment

method is invalid under contract law and the Contracts Clause of the United

States Constitution. EMC Br. 11-15. Specifically, EMC contends that the

Compact is a contract that bars the Legislature from altering its terms or

application until Texas withdraws from the Compact, and that any alteration

unconstitutionally impairs the obligations of that contract. Id. The Court

41 should reject that argument, for several reasons: (1) regardless of the

Compact’s legal status, Articles III and IV do not apply to the franchise tax

because it is not an “income tax” under the Compact; (2) the Compact is an

advisory agreement, not a binding regulatory compact; (3) Article III.1 does not

clearly and validly preclude the Legislature from mandating exclusive use of the

gross-receipts apportionment method; and (4) any conflict between Texas law

and Articles III and IV would not satisfy the standard for an unconstitutional

impairment of contracts.

A. Articles III and IV of the Compact Do Not Apply to the Franchise Tax Because It Is Not an “Income Tax.”

As an initial matter, this appeal does not hinge on whether Texas’s

enactment of the Compact in 1967 contractually bound all future Legislatures

to maintain Articles III and IV as Texas law, because those articles do not apply

to the franchise tax in any event. As discussed above, the franchise tax does not

involve the apportionment of “income,” nor does it meet the Compact’s “income

tax” definition. See supra Part I.B. Regardless of the Compact’s legal force,

then, Articles III and IV do not apply to the franchise tax by their own terms.

For that reason alone, EMC’s compact-related arguments fail.

42 B. The Legislature May Restrict the Compact’s Application in Texas Law Because It Is Not a Binding Regulatory Compact.

Even if Articles III and IV somehow could be construed to apply to the

franchise tax, the Compact does not contractually bar Texas from restricting

those articles’ operation elsewhere in Texas law. This Compact is an advisory

compact containing model laws, not a binding regulatory compact that carries

the preemptive force that EMC assigns to it.

1. The term “compact” does not make this Compact binding.

Contrary to EMC’s assertions, EMC Br. 11-12, the mere fact that the

Compact is an “interstate compact” does not resolve whether the Compact

contractually obligates Texas to maintain the application of Articles III and IV

in state law. Only “in some contexts” is a compact “a contract between the

participating states.” McComb v. Wambaugh, 934 F.2d 474, 479 (3d Cir. 1991)

(emphasis added).

Of the three types of interstate compacts—“boundary,” “regulatory,” and

“advisory”—only the first two potentially create a binding contract. CAROLINE

N. BROUN, ET AL., THE EVOLVING USE AND THE CHANGING ROLE OF

INTERSTATE COMPACTS: A PRACTITIONER’S GUIDE 12-15 (2006). Boundary

compacts “establish official borders between states” “with a high degree of

43 finality.” Id. at 12, 13. And in many “regulatory” compacts, “the member states

have collectively and contractually agreed to reallocate governing authority

away from individual states to a multilateral relationship.” Id. at 21-22.

By contrast, “nonbinding” “advisory” compacts “are more akin to

administrative agreements between states,” which “lack formal enforcement

mechanisms.” Id. at 13, 14. “[A]dvisory compacts cede no state sovereignty nor

delegate any governing power to a compact-created agency.” Id. at 14. And

they “generally do not require congressional consent.” Id. As discussed below

the Compact fits this advisory-compact category.

2. U.S. Steel did not address whether the Compact is a binding contract.

EMC cites the Supreme Court’s U.S. Steel decision for its contention that

the Compact is a “valid and binding interstate compact.” EMC Br. 13

(emphasis added). But U.S. Steel does not support that proposition. Neither

the word “binding” nor any variation thereof appears in the majority opinion.

See 434 U.S. at 454-79. That is unsurprising because whether the Compact

constitutes a binding compact or contract was not at issue in that case.

In U.S. Steel, corporations facing audits by the Commission filed suit to

declare the Compact unconstitutional on the ground that the Compact’s lack of

44 congressional consent violated the Compact Clause. Id. at 458 & n.7; see U.S.

CONST. art. I, § 10, cl. 3 (“No State shall, without the Consent of Congress . . .

enter into any Agreement or Compact with another State . . . .”). The Court

rejected that challenge, holding that the Compact Clause does not apply to this

Compact because it does not “enhance the political power of the member States

in a way that encroaches upon the supremacy of the United States.” 434 U.S.

at 472. The Court also rejected claims that the Compact violated the Commerce

Clause and the Fourteenth Amendment. Id. at 478-79. Thus, while the Court

decided that the Compact was “valid” (at least under the provisions at issue), see

id. at 454, it did not address or resolve what type of compact the Compact is or

whether it contractually binds its member states.

3. The Compact does not exhibit the indicia of a binding regulatory compact.

Since U.S. Steel, the Supreme Court has identified three “classic indicia”

of a binding regulatory compact: (1) the establishment of a joint regulatory

body; (2) state enactments that require reciprocal action to be effective; and

(3) the prohibition of unilateral repeal or modification of its terms. See Ne.

Bancorp, Inc. v. Bd. of Governors of Fed. Reserve Sys., 472 U.S. 159, 175 (1985);

see also Seattle Master Builders Ass’n v. Pac. Nw. Elec. Power & Conservation

45 Planning Council, 786 F.2d 1359, 1363 (9th Cir. 1986). As the Michigan Court

of Claims recently concluded, the Compact does not exhibit any of these

characteristics. Ingram Micro, Inc. v. Dep’t of Treas., No. 11-000035-MT, slip

op. at 7-13 (Mich. Ct. Cl. Dec. 19, 2014) (App. D).

a. The Commission is not a joint regulatory body.

The first trait of a binding regulatory compact is creation of a “joint

organization for regulatory purposes,” Seattle Master Builders, 786 F.2d at

1363 (emphasis added); see also Ne. Bancorp, 472 U.S. at 175. By contrast, an

advisory compact “cede[s] no state sovereignty nor delegate[s] any governing

power to a compact-created agency.” BROUN, supra, at 14 (emphases added).

The Compact does not create a joint regulatory body. It forms the

Multistate Tax Commission, TEX. TAX CODE § 141.001, art. VI, but that agency

does not qualify. As the Court noted in U.S. Steel: “Nor is there any delegation

of sovereign power to the Commission; each State retains complete freedom to

adopt or reject the rules and regulations of the Commission.” 434 U.S. at 473;

see also TEX. TAX CODE § 141.001, art. VII.3. Aside from drafting non-binding

rules, the Commission’s other powers also evince an advisory compact.

Compare TEX. TAX CODE § 141.001, art. VI.3 (granting the Commission power

to “[s]tudy state and local tax systems,” “[d]evelop and recommend proposals,”

46 and “[c]ompile and publish information”), with BROUN, supra, at 13 (explaining

that advisory compacts “are designed not to actually resolve an interstate

matter, but simply to study such matters”). The Commission conducts audits

only upon request. TEX. TAX CODE § 141.001, art. VIII.2. And its arbitration

functions are inoperative. U.S. Steel, 434 U.S. at 493 (White, J., dissenting).

b. The Compact provisions do not require reciprocal action to be effective.

The second feature of a binding regulatory compact is the inclusion of

“state enactments which require reciprocal action for their effectiveness.”

Seattle Master Builders, 786 F.2d at 1363; see also Ne. Bancorp, 472 U.S. at

175. For example, the Interstate Compact for Adult Offender Supervision

provides a mechanism for Texas parolees to serve their parole in other compact

states, and vice-versa. See TEX. GOV’T CODE § 510.017, art. I. That agreement

requires reciprocal action to be effective because, among other things, a

“sending” state “transfer[s] supervision authority” over a parolee to a

“receiving” state, which in turn must allow a sending state’s officials to enter the

receiving state to “retake” an offender for a parole violation. See id.

The Multistate Tax Compact does not similarly require reciprocal action

to effect its substantive terms. The Compact “does not purport to authorize the

47 member States to exercise any powers they could not exercise in its absence.”

U.S. Steel, 434 U.S. at 473. Each member state administers its tax laws,

including the apportionment of its business tax base, without reference to or

consideration of other states’ laws. See Moorman Mfg. Co. v. Bair, 437 U.S.

267, 278-79 (1978) (noting that states enact differing apportionment formulas

“based on political and economic considerations that vary from State to State”).

The Compact does nothing to change that. A Compact state can allow a

taxpayer to exercise Article III.1’s option and use Article IV to apportion its

business income regardless of how other states tax or apportion that income or

whether those states are even Compact members. TEX. TAX CODE § 141.001,

art. IV.2-3 (noting that the only condition on Article IV’s application is that the

taxpayer’s income be “taxable” in another state).3

c. The Compact does not prohibit unilateral repeal or modification.

The third characteristic of a binding regulatory compact is “conditional

consent” that prohibits a member state from unilaterally repealing or modifying

3. Likewise, Article V’s “tax credit” and “exemption certificate” provisions do not depend on whether the other state imposing a sales or use tax or authorizing an exemption has similar provisions in its laws or is a Compact

48 its participation. Seattle Master Builders, 786 F.2d at 1363; see also Ne.

Bancorp, 472 U.S. at 175. This Compact contains neither condition.

The Compact expressly provides that a state “may withdraw from this

compact by enacting a statute repealing the same.” TEX. TAX CODE § 141.001,

art. X.2. Withdrawal does not affect any previously incurred liability—e.g.,

dues, payments for audits, id., art. VI.4, VIII.2—but the existence or non-

payment of those liabilities does not prevent or delay withdrawal. Id., art. X.2.

The Compact also does not prohibit a state from unilaterally modifying

its participation. While no provision explicitly allows a state to unilaterally

modify its participation, that silence favors a construction that states may do so.

The “well-established” presumption is that, “absent some clear indication that

the legislature intends to bind itself contractually,” an enacted law does not

create contractual rights. Nat’l R.R. Passenger Corp. v. Atchison, Topeka &

Santa Fe Ry., 470 U.S. 451, 465-66 (1985). That presumption surely informs

Seattle Master Builders’ framing of this inquiry: the issue is whether a compact

renders a state “not free to modify . . . its participation unilaterally,” not

whether a compact affirmatively allows modification. 786 F.2d at 1363

(emphasis added).

49 And because the Compact concerns taxation, its silence on modification

weighs even more strongly against construing it as a binding contract. States

“have the attribute of sovereign powers in devising their fiscal systems to

ensure revenue.” Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 526 (1959).

Since “States rarely relinquish their sovereign powers,” such as taxation, “when

they do we would expect a clear indication of such devolution, not inscrutable

silence.” Tarrant Reg’l Water Dist. v. Hermann, 133 S. Ct. 2120, 2133 (2013).

The Compact’s silence on modification thus indicates that its members did not

intend to contract away their sovereign right to amend their state tax laws in

a way that varies from the Compact’s substantive provisions.

To the contrary, the Compact states consistently have construed that

silence to mean that members may unilaterally change or restrict the

Compact’s terms in their own laws. In 1972, the Compact states unanimously

ratified Florida’s decision to repeal Articles III and IV of the Compact in its law

and to mandate a different apportionment method, recognizing that it remained

a “regular” Compact member “in good standing.” CR.879. And, as discussed

above, 11 more former and current Compact members (including Texas) have

since taken similar steps to remove or limit the operation of Articles III and IV

in their jurisdictions, all without objection from other states. See supra

50 Statement of Facts, Parts II.C, III. Because “the parties’ course of

performance under the Compact is highly significant” in interpreting its

meaning, see Alabama v. North Carolina, 560 U.S. 330, 346 (2010), the Court

should not construe the Compact to be a binding regulatory compact.

EMC argues that the Compact’s status as an “interstate compact” alone

means that it “is also a contract that cannot be amended, modified, or otherwise

altered without consent of all parties.” EMC Br. 12. But that begs the

question. “Once entered, the terms of the compact and any rules and

regulations authorized by the compact can, to the extent provided in the

agreement, supersede any substantive state laws that may be in conflict . . . .”

BROUN, supra, at 22 (emphasis added). Unlike other compacts, this Compact

does not provide that it supersedes conflicting state law, nor does it expressly

prohibit changes to the Compact’s text or application in a member state’s law.4

And, in any event, the Compact parties did consent to individual members

4. Cf. TEX. FAM. CODE § 60.010, art. XII.A.2 (Uniform Interstate Compact on Juveniles) (“All compacting states’ laws other than state constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.”); TEX. GOV’T CODE § 510.017, art. XIII (Interstate Compact for Adult Offender Supervision) (“Nothing in this compact prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.”); TEX. TRANSP. CODE § 523.007 (Driver’s License Compact of 1993) (“Except as expressly required by provisions of this compact, nothing contained herein shall be construed to affect the right of any state to apply any of its other laws relating to licenses to drive to any person or circumstance . . . .”).

51 eliminating or restricting Article III.1’s “taxpayer option” by unanimously

adopting the 1972 Florida resolution. CR.879.

4. The Compact is an advisory compact with uniform laws.

Because the Compact lacks the indicia of a binding regulatory compact,

it must be an advisory compact. The usual traits of advisory compacts are all

present: it aims to “study” state tax systems, not “resolve” conflicts among

them; it “lack[s] formal enforcement mechanisms”; it “cede[s] no state

sovereignty nor delegate[s] any governing power to a compact-created agency”;

and it “do[es] not require congressional consent.” BROUN, supra, at 13-14.

The Compact’s structure and terms show that Article II through V’s tax-

law “elements” constitute uniform laws contained within that advisory compact.

The Compact simply inserts those articles into its text, without any prefatory

language requiring members to maintain those provisions unchanged in their

laws or any means of compelling them to do so. See TEX. TAX CODE § 141.001,

arts. II-V. What prefaces those provisions instead is the “Purposes” article,

which describes the Compact as “[f]acilitat[ing]” the determination of multistate

taxpayers’ tax liability and “[p]romot[ing]” uniformity in tax systems—words

that are hortatory, not mandatory. Id., art. I. Indeed, the Compact’s sole

method of implementing those tax-law elements is through the Commission’s

52 draft regulations, which are “advisory only.” U.S Steel, 434 U.S. at 457.

Moreover, Article IV’s text is a uniform law—UDITPA. See supra Statement

of Facts, Part II.B.3. And the Commission’s first annual report recounted that

the Compact had “been enacted as a uniform law” by 15 states. MULTISTATE

TAX COMM’N, FIRST ANNUAL REPORT 12 (1969), available at http://www.mtc.

gov/uploadedFiles/Multistate_Tax_Commission/Resources/Archives/Annual

_Reports/FY67-68.pdf. Because “[u]niform acts do not constitute a contract

between the states,” the Compact members “may make changes to fit individual

state needs.” BROUN, supra, at 16. Accordingly, Texas was free to restrict the

operation of Articles III.1 and IV in Texas law to the extent they would

otherwise apply.

C. The Compact Does Not Preclude the Legislature from Mandating Exclusive Use of Section 171.106’s Gross-Receipts Apportionment Method.

Regardless of whether the Compact as a whole is a binding contract, the

provisions that EMC relies on—Articles III.1 and IV—still do not compel its

desired outcome, for two reasons. First, applying Article III.1 to the franchise

tax creates a latent ambiguity that must be resolved in favor of section 171.106’s

exclusive apportionment method. And second, under the Texas Constitution,

53 Article III.1 may not suspend Texas’s authority to tax the part of a taxpayer’s

margin that would elude taxation under Article IV’s apportionment method.

1. Article III.1 does not unambiguously bar the Legislature from enforcing an exclusive apportionment method.

Article III.1 states that a taxpayer “may elect to apportion and allocate

his income in the manner provided by the laws of [a Compact] State . . . without

reference to this compact, or may elect to apportion and allocate in accordance

with [the three-factor income-apportionment method in] Article IV.” TEX. TAX

CODE § 141.001, art. III.1. Again, this language presumes that a state’s laws do

no more than “provide[]” a “manner” of apportioning income; it does not

address the circumstance in which that state-law manner mandates exclusive

use of one apportionment method, as section 171.106(a) does. See supra Part

I.C.2. Nor does the Compact preclude a state from adding that sort of exclusive

condition to the laws that Article III.1 incorporates by reference. For all that

Article III.1 reveals, the taxpayer takes the state laws as it finds them. So what

happens when the state law that Article III.1 incorporates as an option is by its

very terms not optional? The Compact doesn’t say.

Applying Article III.1 to section 171.106’s exclusive apportionment

method thus creates a latent ambiguity. See BLACK’S LAW DICTIONARY 93 (9th

54 ed. 2009) (defining “latent ambiguity” as an “ambiguity that does not readily

appear in the language of a document, but instead arises from a collateral

matter when the document’s terms are applied”). That ambiguity warrants

recourse to “other interpretive tools” to discern the Compact’s meaning in this

scenario. See Tarrant Reg’l Water Dist., 133 S. Ct. at 2132.

Three construction aids already discussed support the Comptroller’s view

that the Compact does not prevent member states from enforcing exclusive

apportionment provisions such as section 171.106. First, courts will not

construe a compact to cede a sovereign power like tax apportionment without

a “clear indication” of that purpose. Id. at 2133. Again, Article III.1 does not

address the conflict that arises when it purports to incorporate a non-optional

state law as an option, much less clearly indicate an intent to allow taxpayers to

override a legislative command. See supra Part II.B.3.c. Second, “[t]he parties’

conduct under the Compact” provides “‘highly significant’ evidence of [their]

understanding of the [C]ompact’s terms.” Tarrant Reg’l Water Dist., 133 S. Ct.

at 2135 (quoting Alabama, 560 U.S. at 346). Both the 1972 Florida resolution

and the unopposed disabling of Article III.1’s taxpayer option by 12 Compact

members reflect the parties’ common, long-held view that the Compact does not

preclude them from imposing an exclusive apportionment method. See supra

55 Part II.B.3.c. And third, comparisons to other compacts’ text can shed light on

the parties’ intent here. Tarrant Reg’l Water Dist., 133 S. Ct. at 2133. Unlike

this Compact, other compacts to which Texas belongs explicitly state that the

compact supersedes any conflicting state statute. See supra p. 51, n.4.

The Minnesota Tax Court, sitting en banc, recently reached a similar

conclusion regarding the Compact. Kimberly Clark Corp. v. Comm’r of

Revenue, No. 8670-R, slip op. (Minn. Tax Ct. June 19, 2015) (en banc) (App. E).

Assuming without deciding that the Compact was a binding contract, id. at 26,

the court held that nothing in the Compact “constitutes a clear and

unmistakable promise to refrain from using the State’s sovereign power to alter

the apportionment election provided by Articles III and IV,” id. at 40. The

court further relied on the Compact members’ course of performance in

determining that “the Compact could not reasonably be understood as

contractually requiring party states to refrain from using their sovereign

powers to alter the apportionment election.” Id. at 55.

2. Article III.1 cannot constitutionally require Texas to allow a taxpayer to remove part of its tax base from Texas’s taxing authority.

Construing Article III.1 to preclude Texas from enacting an exclusive

apportionment method also would impermissibly conflict with the Texas

56 Constitution’s prohibition against contractual suspensions of the sovereign

power of taxation—a conflict that the Compact itself aims to avoid.

By its terms, the Compact operates within a member state only to the

extent that the state enacts the Compact as a statute. TEX. TAX CODE

§ 141.001, art. X.1. Thus, the Compact’s drafters understood that its provisions

could not conflict with any Compact state’s constitution. To address that

constraint, the Compact decrees that if any provision or part thereof is declared

to be contrary to a state constitution, it is severable, and the Compact otherwise

remains in effect. Id., art. XII.

Article VIII, section 4 of the Texas Constitution provides that the

Legislature may not surrender or suspend the power to tax corporations “by

any contract or grant to which the State shall be a party.” TEX. CONST. art.

VIII, § 4. Thirteen other former and current Compact states’ constitutions

contain similar prohibitions.5 Yet EMC construes Article III.1 to effect such a

contractual suspension. Under EMC’s reasoning, Texas contracted away its

power to tax that portion of a taxpayer’s tax base that the taxpayer removes

5. ALASKA CONST. art. IX, § 1; ARK. CONST. art. 16, § 7; CAL. CONST. art. XIII, § 31; HAW. CONST. art. VII, § 1; ILL. CONST. art. IX, § 1; MICH. CONST. art. IX, § 2; MINN. CONST. art. X, § 1; MO. CONST. art. X, § 2; MONT. CONST. art. VIII, § 2; N.D. CONST. art. X, § 2; S.D. CONST. art. XI, § 3; WASH. CONST. art. 7, § 1; WYO. CONST. art. 15, § 14.

57 from Texas’s taxing authority by electing Article IV’s income-apportionment

method over section 171.106’s exclusive apportionment method. Here, for

example, EMC claims a contractual right to withdraw part of its margin from

Texas’s taxing power to the tune of over $5 million in forgone revenue. CR.5.

That is precisely the sort of claim that Texas courts have rejected in light of the

constitutional prohibition against contractual suspensions of the taxing power.

See, e.g., Gaar, Scott & Co. v. Shannon, 115 S.W. 361, 362 (Tex. Civ.

App.—Austin 1908, writ denied) (holding that business permit under which

taxpayer paid franchise tax for 10-year term could not foreclose state from

amending franchise tax to impose additional tax burdens during that term),

aff’d, 223 U.S. 468 (1912).

Because EMC’s reading of Article III.1 cannot be squared with the

constitutions of most Compact states (including Texas), it is not one that the

Compact states could have intended or that the Court should embrace. As the

Minnesota Tax Court reasoned, “[c]onsidering that at least fourteen States have

constitutional provisions prohibiting them from contracting away their taxing

power, it is highly unlikely that the state tax officials and attorneys general who

drafted the Compact intended that party States would surrender their

sovereign authority to alter or repeal the apportionment election.” Kimberly

58 Clark Corp., No. 8670-R, slip. op. at 55; see also Employees Ret. Sys. v. Duenez,

288 S.W.3d 905, 910 (Tex. 2009) (noting that courts “must avoid constitutionally

suspect constructions” of statutes).

D. The Compact Does Not Supersede Section 171.106 Because Any Conflict Does Not Unconstitutionally Impair Any Contractual Obligations.

A holding that the Compact obligates its members to provide Article

III.1’s “taxpayer option” still would not win this appeal for EMC. Section

171.106’s mandate to use the gross-receipts method would yield only to the

extent that disabling Article III.1 would violate the Contracts Clauses of the

United States and Texas Constitutions. EMC has not shown a violation here.

1. Binding compacts that Congress has not approved preempt state law only if the law unconstitutionally impairs contractual obligations.

When Congress approves an interstate compact, it “transforms” the

compact into federal law. Cuyler v. Adams, 449 U.S. 433, 440 (1981). Under the

Supremacy Clause, then, an approved compact “pre-empts any state law that

conflicts with the Compact.” Tarrant Reg’l Water Dist., 133 S. Ct. at 2130 n.8.

By contrast, a non-approved compact like the Multistate Tax Compact

operates only as a state statute and, in some cases, a binding contract among

states. See 1A NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND

59 STATUTES AND STATUTORY CONSTRUCTION § 32:5, at 723 (7th ed. 2009). As a

statute, the compact may be trumped by other state law under “the doctrine of

implied repeal” or rules that “give effect to the latest in time.” Id. § 32:6, at 727.

But when the compact also creates a binding contract, it may supersede a

conflicting statute if the statute’s effect on the compact violates the Contracts

Clauses, U.S. CONST. art I, § 10, cl. 1; TEX. CONST. art. I, § 16, which prohibit

laws impairing contractual obligations. Green v. Biddle, 21 U.S. (8 Wheat.) 1,

92 (1823) (holding that a statute abrogating a compact violated Contracts

Clause); Gen. Expressways, Inc. v. Iowa Reciprocity Bd., 163 N.W.2d 413, 419-

21 (Iowa 1968) (evaluating conflicts between a statute and a compact under

contracts-clause principles); SINGER, supra, § 32:3, at 719 (describing compacts

as “deriv[ing] binding force” from the Contracts Clause); BROUN, supra, at 22

(explaining that “[a] compact controls over a state’s application of its own law

through the Supremacy Clause [in the case of approved compacts] and the

Contracts Clause”).

EMC seems to suggest that a non-approved compact preempts other

state law simply by virtue of being an interstate agreement, independent of the

“binding force” of the Contracts Clauses. See EMC Br. 13. In support, EMC

60 relies primarily on West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951). But

that reliance is misplaced.

EMC misconstrues Dyer’s analysis as concerning conflicts between

compacts and later-enacted statutes. In Dyer, although the West Virginia

legislature had ratified an interstate compact, the State’s highest court had

invalidated that ratification on state common-law and constitutional grounds.

Id. at 26. On certiorari review, the Supreme Court confronted the antecedent

question whether it had jurisdiction to review a state supreme court judgment

based on a state-law determination. Id. at 28. In this context, the Court held

that it did:

It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified, or given final meaning by an organ of one of the contracting States. A State cannot be its own ultimate judge in a controversy with a sister State. To determine the nature and scope of obligations as between States, whether they arise through the legislative means of compact or the federal common law governing interstate controversies . . . is the function and duty of the Supreme Court of the Nation.

Id. (citation and internal quotation marks omitted). In other words, the

Supreme Court distinguished between “those who alone have political authority

to speak for a State”—the legislature—and “an organ of one of the contracting

61 States”—e.g., a court—and held that the latter could not nullify or conclusively

construe an agreement adopted by the former. Id. The Court did not address

what happens when the same legislature that adopts a compact later enacts a

potentially conflicting statute, much less prescribe a rule that the statute is

automatically invalid.

Moreover, EMC ignores the Supreme Court’s later recognition that, in

light of Dyer’s statement that “all compacts” require congressional consent, id.

at 27, Dyer’s discussion is necessarily cabined to the subset of compacts that

actually require that consent under the Compact Clause. U.S. Steel, 434 U.S.

at 471 n.23.6 Because Congress has not consented to the Multistate Tax

Compact, EMC must rely on the Contracts Clauses to give the Compact

controlling effect over subsequent Texas law.

2. Section 171.106 does not unconstitutionally impair any obligations to EMC under the Compact.

Whether a state law violates the federal Contracts Clause involves a

three-part inquiry: (1) whether the state law substantially impairs a contractual

relationship; (2) whether a significant, legitimate public purpose motivated the

6. EMC likewise misplaces reliance on Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994). EMC Br. 12. Hess’s analysis concerns “compact[s] accorded congressional consent.” 513 U.S. at 40-42.

62 state law; and (3) whether the adjustment to the contracting parties’ rights is

based on reasonable conditions and appropriate to the law’s purpose. Energy

Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411-13 (1983). The

Texas Constitution’s Contracts Clause requires “[a] similar analysis.” Liberty

Mut. Ins. Co. v. Tex. Dep’t of Ins., 187 S.W.3d 808, 825 (Tex. App.—Austin 2006,

pet. denied). Under this test, section 171.106 validly overrides any possible

application of Article III.1 ’s “taxpayer option” to the franchise tax.

EMC cannot establish the first requirement because it is not a party to

the Compact. Nor is EMC a third-party beneficiary. See Basic Capital Mgmt.

v. Dynex Commercial, Inc., 348 S.W.3d 894, 900 (Tex. 2011) (holding that a

third party may not recover on a contract unless the contracting parties

intended to secure benefits to that third party and entered into the contract

directly for the third party’s benefit).

But even if EMC were an intended Compact beneficiary, disabling Article

III.1’s option would not constitute a “substantial” impairment. “In determining

whether an impairment is substantial and so not ‘permitted under the

Constitution,’ of greatest concern appears to be the contracting parties’ actual

reliance on the abridged contractual term.” City of Charleston v. Pub. Serv.

Comm’n, 57 F.3d 385, 392 (4th Cir. 1995) (quoting U.S. Trust Co. v. New Jersey,

63 431 U.S. 1, 21 (1977)). EMC could not have reasonably relied on Article III.1’s

taxpayer option because the Compact did not clearly and unmistakably obligate

its members to refrain from altering or eliminating that option. See supra Part

II.C; see also Kimberly Clark Corp., No. 8670-R, slip op. at 57 (holding that,

because there was no such obligation, Minnesota did not substantially impair

a contractual relationship under the Contracts Clause by repealing Articles III

and IV of the Compact). EMC also could not have reasonably expected that the

option would remain in place because the Compact permits states to withdraw

at will. See City of Charleston, 57 F.3d at 392-93 (noting that the reliance

analysis turns in part on whether the contract “indicated that the abridged term

was subject to impairment by the legislature”). By contrast, since at least 1991

Texas has significantly relied on the Compact states’ shared interpretation that

Article III.1 does not preclude them from adopting exclusive apportionment

methods.

And even if EMC could demonstrate the threshold substantial

impairment, that still would not establish a constitutional violation because

section 171.106 serves a significant and legitimate purpose. See Energy

Reserves, 459 U.S. at 411-12. States enjoy “wide latitude in the selection of

apportionment formulas.” Moorman, 437 U.S. at 274. Texas once allowed

64 taxpayers to request a multi-factor apportionment method, but later changed

that policy because it disproportionately favored foreign corporations. See

supra Statement of Facts, Part I.B.2. In imposing a single-factor method, and

disallowing any option under the Compact, section 171.106 “treats both local

and foreign concerns with an even hand.” Moorman, 437 U.S. at 277 n.12.

Finally, to the extent section 171.106 adjusts any taxpayer rights under

the Compact, it does so under reasonable and appropriate conditions. The

Supreme Court has repeatedly held that single-factor apportionment methods

are “presumptively valid.” Id. at 273. Indeed, this Court has specifically

upheld Texas’s gross-receipts method as constitutional. Gen. Dynamics, 919

S.W.2d at 867-69.

3. EMC waived the Contracts Clause issue.

EMC makes no effort to apply the Energy Reserves analysis. EMC Br.

14. Instead, EMC simply asserts that the Comptroller’s interpretation and

application of section 171.106 “impairs Texas’s contractual obligation to allow

taxpayers the three-factor apportionment formula election under the Multistate

Tax Compact.” Id. But merely identifying a breached contractual term does

not establish a Contracts Clause violation. As described above, the Supreme

Court has adopted a standard that requires more, confirming that “[t]he

65 Contract[s] Clause is not an absolute bar to subsequent modification of a State’s

own financial obligations” under a compact. U.S. Trust, 431 U.S. at 25. Having

failed to brief the proper test, EMC has waived its Contracts Clause issue. See

Sunbeam Envtl. Servs. v. Tex. Workers’ Comp. Ins. Facility, 71 S.W.3d 846, 851

(Tex. App.—Austin 2002, no pet.).

III. EMC’ S A S -A PPLIED C ONSTITUTIONAL C HALLENGES A RE JURISDICTIONALLY BARRED, WAIVED, AND MERITLESS.

In its final issue, EMC contends that section 171.106’s gross-receipts

apportionment method, as applied to its business, violates the Due Process and

Commerce Clauses of the United States Constitution and the Equal and

Uniform Taxation Clause of the Texas Constitution. EMC Br. 20-22. In

support, EMC argues that the gross-receipts method “attributes to Texas a

percentage of income that is disproportionate to the business EMC transacts

in Texas and leads to a grossly distorted result.” Id. at 21.

As a threshold matter, the district court lacked jurisdiction over those

challenges because EMC failed to raise them in its motion for rehearing before

the Comptroller. Among the jurisdictional prerequisites to a tax-refund suit,

a taxpayer must have filed a motion for rehearing that the Comptroller denied,

TEX. TAX CODE § 112.151(a)(2), and “[t]he grounds of error contained in the

66 motion for rehearing are the only issues that may be raised in [the] suit,” id.

§ 112.152(a). See Combs v. Chevron, Inc., 319 S.W.3d 836, 845 (Tex.

App.—Austin 2010, pet. denied) (describing this requirement as a “necessary”

“condition for trial-court jurisdiction”); see also In re Nestle USA, Inc., 359

S.W.3d 207, 211-12 (Tex. 2012) (Nestle I) (dismissing constitutional challenges

to the franchise tax for failure to comply with the administrative prerequisites

to suit in chapter 112 of the Tax Code).

EMC’s motion for rehearing listed a single ground of error: “Texas is

required to allow taxpayers to follow Article IV of the Multistate Tax Compact

since Texas was a member of the compact for the years at issue.” CR.8. The

motion elaborated that the Compact was binding on Texas, that Texas could not

deviate from the Compact’s terms without withdrawing from the Compact, and

that any law purporting to override the Compact would unconstitutionally

impair Texas’s contract obligations. CR.8-9. But the motion never mentioned

the Due Process, Commerce, or Equal and Uniform Taxation Clauses, and it

never complained that EMC’s use of the gross-receipts method resulted in a

disproportionate or grossly distorted tax burden. Id. Accordingly, EMC was

jurisdictionally barred from raising those issues in this suit.

67 Alternatively, the district court correctly granted summary judgment to

the Comptroller on these issues because EMC failed to plead them. A trial

court may not grant relief on a claim that was neither pleaded nor tried by

consent. In re Park Mem’l Condo. Ass’n, 322 S.W.3d 447, 450-51 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (citing TEX. R. CIV. P. 301); accord

Vincent v. Bank of Am., N.A., 109 S.W.3d 856, 863 (Tex. App.—Dallas 2003,

pet. denied) (“A party may not obtain a judgment based on a theory not pled.”).

EMC’s petition alleged only that the Compact contractually obligated

Texas to allow EMC to elect the Compact’s three-factor apportionment method.

CR.5-6. It did not mention the Due Process, Commerce, or Equal and Uniform

Taxation Clauses, and it did not assert that the gross-receipts method caused

EMC to suffer a disproportionate or grossly distorted tax burden. CR.4-7. Nor

were those issues tried by consent. When EMC included those issues in its

summary-judgment briefing, the Comptroller specifically objected that they

were outside the pleadings and asked the district court to disregard them.

CR.1133-34. Thus, if the Court does not dismiss these issues as jurisdictionally

barred, it should affirm the judgment for the Comptroller.

Finally, EMC’s arguments lack merit. As this Court has explained,

Texas’s gross-receipts apportionment method is presumptively valid under the

68 Due Process and Commerce Clauses. Gen. Dynamics, 919 S.W.2d at 868. To

meet its “heavy burden” to overcome that presumption, EMC was required to

show by “clear and cogent evidence” that the part of its margin apportioned to

Texas is “out of all appropriate proportion to the business transacted” here or

“has led to a grossly distorted result.” Id. (citations and internal quotation

marks omitted). And that showing must rest on a comparison of the

apportioned margin under EMC’s proposed formula to that actually

apportioned under the gross-receipts method. Id. at 868-69. Surveying

Supreme Court precedent on this issue, this Court has observed that the

Supreme Court “has only twice held the application of a single-factor formula

to be unconstitutional”—specifically, in cases where the challenged formula

increased the apportioned tax base by 162-205% (depending on the method

used) and 250%. Id. at 869. By contrast, the Supreme Court has upheld

apportionment formulas that increased the apportioned tax base within a range

of 14-93%. Id.

Here, the evidence showed that application of the gross-receipts method

rather than the Compact’s three-factor method increased EMC’s apportioned

margin within the range of 57.6-61.8% (depending on the year). CR.1135, 1143-

54. Because those increases fall well within the range of apportionment

69 differences upheld as constitutional by the Supreme Court, and well outside

those that the Court has found unconstitutional, EMC failed to show that, as

applied to its business, the gross-receipts method violates the Due Process or

Commerce Clauses.7

7. EMC offers no argument regarding the Equal and Uniform Taxation Clause. See EMC Br. 20-22. And EMC’s discussion regarding the Due Process and Commerce Clauses does not support an action under the Equal and Uniform Taxation Clause; the claims and standards are different. See Nestle II, 387 S.W.3d at 618-26 (treating these as distinct claims). Accordingly, EMC has waived any equal-and-uniform-taxation issue. See TEX. R. APP. P. 38.1(i).

70 PRAYER

The district court’s judgment should be affirmed.

Respectfully submitted.

K EN PAXTON SCOTT A. K ELLER Attorney General of Texas Solicitor General

CHARLES E. R OY /s/ Rance Craft First Assistant Attorney RANCE CRAFT General Assistant Solicitor General State Bar No. 24035655 JAMES E. DAVIS Deputy Attorney General for CHARLES K. ELDRED Civil Litigation Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 (512) 936-2872 (512) 474-2697 [fax] rance.craft@texasattorneygeneral.gov

71 C ERTIFICATE OF C OMPLIANCE

According to WordPerfect 12, this brief contains 14,850 words, excluding

the portions of the brief exempted by Texas Rule of Appellate Procedure

9.4(i)(1).

/s/ Rance Craft Rance Craft

C ERTIFICATE OF SERVICE

On July 8, 2015, this Brief of Appellees was served by File & Serve

Xpress on:

Doug Sigel RYAN LAW FIRM, LLP 100 Congress Avenue, Suite 950 Austin, Texas 78701 Doug.Sigel@RyanLawLLP.com

Lead Counsel for Appellant

/s/ Rance Craft Rance Craft

72 APPENDIX TABLE OF C ONTENTS

A. TEX. TAX CODE § 141.001

B. Addendum to Volume 1 of Florida Statutes, 1971

C. COMPTROLLER’S DECISION NOS. 104,752 & 104,753 (2011)

D. Ingram Micro, Inc. v. Dep’t of Treas., No. 11-000035-MT, slip op. (Mich. Ct. Cl. Dec. 19, 2014)

E. Kimberly Clark Corp. v. Comm’r of Revenue, No. 8670-R, slip op. (Minn. Tax Ct. June 19, 2015) (en banc) A V.T.C.A., Tax Code § 141.001 Page 1

Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness Tax Code (Refs & Annos) Title 2. State Taxation (Refs & Annos) Subtitle D. Compacts and Uniform Laws Chapter 141. Multistate Tax Compact (Refs & Annos) § 141.001. Adoption of Multistate Tax Compact

The Multistate Tax Compact is adopted and entered into with all jurisdictions legally adopting it to read as follows:

MULTISTATE TAX COMPACT

ARTICLE I. PURPOSES

The purposes of this compact are to:

1. Facilitate proper determination of state and local tax liability of multistate taxpayers, including the equitable apportionment of tax bases and settlement of apportionment disputes.

2. Promote uniformity or compatibility in significant components of tax systems.

3. Facilitate taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration.

4. Avoid duplicative taxation.

ARTICLE II. DEFINITIONS

As used in this compact:

1. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico,

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or any territory or possession of the United States.

2. “Subdivision” means any governmental unit or special district of a state.

3. “Taxpayer” means any corporation, partnership, firm, association, governmental unit or agency or person acting as a business entity in more than one state.

4. “Income tax” means a tax imposed on or measured by net income including any tax imposed on or measured by an amount arrived at by deducting expenses from gross income, one or more forms of which expenses are not specifically and directly related to particular transactions.

5. “Capital stock tax” means a tax measured in any way by the capital of a corporation considered in its entirety.

6. “Gross receipts tax” means a tax, other than a sales tax, which is imposed on or measured by the gross volume of business, in terms of gross receipts or in other terms, and in the determination of which no deduction is allowed which would constitute the tax an income tax.

7. “Sales tax” means a tax imposed with respect to the transfer for a consideration of ownership, posses- sion or custody of tangible personal property or the rendering of services measured by the price of the tangible personal property transferred or services rendered and which is required by state or local law to be separately stated from the sales price by the seller, or which is customarily separately stated from the sales price, but does not include a tax imposed exclusively on the sale of a specifically identified commodity or article or class of commodities or articles.

8. “Use tax” means a nonrecurring tax, other than a sales tax, which (a) is imposed on or with respect to the exercise or enjoyment of any right or power over tangible personal property incident to the ownership, possession or custody of that property or the leasing of that property from another including any con- sumption, keeping, retention, or other use of tangible personal property and (b) is complementary to a sales tax.

9. “Tax” means an income tax, capital stock tax, gross receipts tax, sales tax, use tax, and any other tax which has a multistate impact, except that the provisions of Articles III, IV and V of this compact shall apply only to the taxes specifically designated therein and the provisions of Article IX of this compact shall apply only in respect to determinations pursuant to Article IV.

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ARTICLE III. ELEMENTS OF INCOME TAX LAWS

Taxpayer Option, State and Local Taxes

1. Any taxpayer subject to an income tax whose income is subject to apportionment and allocation for tax purposes pursuant to the laws of a party state or pursuant to the laws of subdivisions in two or more party states may elect to apportion and allocate his income in the manner provided by the laws of such state or by the laws of such states and subdivisions without reference to this compact, or may elect to apportion and allocate in accordance with Article IV. This election for any tax year may be made in all party states or subdivisions thereof or in any one or more of the party states or subdivisions thereof without reference to the election made in the others. For the purposes of this paragraph, taxes imposed by subdivisions shall be considered separately from state taxes and the apportionment and allocation also may be applied to the entire tax base. In no instance wherein Article IV is employed for all subdivisions of a state may the sum of all apportionments and allocations to subdivisions within a state be greater than the apportionment and allocation that would be assignable to that state if the apportionment or allocation were being made with respect to a state income tax.

Taxpayer Option, Short Form

2. Each party state or any subdivision thereof which imposes an income tax shall provide by law that any taxpayer required to file a return, whose only activities within the taxing jurisdiction consist of sales and do not include owning or renting real estate or tangible personal property, and whose dollar volume of gross sales made during the tax year within the state or subdivision, as the case may be, is not in excess of $100,000 may elect to report and pay any tax due on the basis of a percentage of such volume, and shall adopt rates which shall produce a tax which reasonably approximates the tax otherwise due. The Multi- state Tax Commission, not more than once in five years, may adjust the $100,000 figure in order to reflect such changes as may occur in the real value of the dollar, and such adjusted figure, upon adoption by the commission, shall replace the $100,000 figure specifically provided herein. Each party state and subdi- vision thereof may make the same election available to taxpayers additional to those specified in this paragraph.

Coverage

3. Nothing in this article relates to the reporting or payment of any tax other than an income tax.

ARTICLE IV. DIVISION OF INCOME

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1. As used in this article, unless the context otherwise requires:

(a) “Business income” means income arising from transactions and activity in the regular course of the taxpayer's trade or business and includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations.

(b) “Commercial domicile” means the principal place from which the trade or business of the taxpayer is directed or managed.

(c) “Compensation” means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.

(d) “Financial organization” means any bank, trust company, savings bank, industrial bank, land bank, safe deposit company, private banker, savings and loan association, credit union, cooperative bank, small loan company, sales finance company, investment company, or any type of insurance company.

(e) “Nonbusiness income” means all income other than business income.

(f) “Public utility” means any business entity (1) which owns or operates any plant, equipment, property, franchise, or license for the transmission of communications, transportation of goods or persons, except by pipe line, or the production, transmission, sale, delivery, or furnishing of electricity, water or steam; and (2) whose rates of charges for goods or services have been established or approved by a federal, state or local government or governmental agency.

(g) “Sales” means all gross receipts of the taxpayer not allocated under paragraphs of this article.

(h) “State” means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, and any foreign country or political subdivision thereof.

(i) “This state” means the state in which the relevant tax return is filed or, in the case of application of this article to the apportionment and allocation of income for local tax purposes, the subdivision or local taxing district in which the relevant tax return is filed.

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2. Any taxpayer having income from business activity which is taxable both within and without this state, other than activity as a financial organization or public utility or the rendering of purely personal services by an individual, shall allocate and apportion his net income as provided in this article. If a taxpayer has income from business activity as a public utility but derives the greater percentage of his income from activities subject to this article, the taxpayer may elect to allocate and apportion his entire net income as provided in this article.

3. For purposes of allocation and apportionment of income under this article, a taxpayer is taxable in an- other state if (1) in that state he is subject to a net income tax, a franchise tax measured by net income, a franchise tax for the privilege of doing business, or a corporate stock tax, or (2) that state has jurisdiction to subject the taxpayer to a net income tax regardless of whether, in fact, the state does or does not.

4. Rents and royalties from real or tangible personal property, capital gains, interest, dividends or patent or copyright royalties, to the extent that they constitute nonbusiness income, shall be allocated as provided in paragraphs 5 through 8 of this article.

5. (a) Net rents and royalties from real property located in this state are allocable to this state.

(b) Net rents and royalties from tangible personal property are allocable to this state: (1) if and to the extent that the property is utilized in this state, or (2) in their entirety if the taxpayer's commercial domicile is in this state and the taxpayer is not organized under the laws of or taxable in the state in which the property is utilized.

(c) The extent of utilization of tangible personal property in a state is determined by multiplying the rents and royalties by a fraction, the numerator of which is the number of days of physical location of the property in the state during the rental or royalty period in the taxable year and the denominator of which is the number of days of physical location of the property everywhere during all rental or royalty periods in the taxable year. If the physical location of the property during the rental or royalty period is unknown or unascertainable by the taxpayer, tangible personal property is utilized in the state in which the property was located at the time the rental or royalty payer obtained possession.

6. (a) Capital gains and losses from sales of real property located in this state are allocable to this state.

(b) Capital gains and losses from sales of tangible personal property are allocable to this state if (1) the property had a situs in this state at the time of the sale, or (2) the taxpayer's commercial domicile is in this state and the taxpayer is not taxable in the state in which the property had a situs.

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(c) Capital gains and losses from sales of intangible personal property are allocable to this state if the taxpayer's commercial domicile is in this state.

7. Interest and dividends are allocable to this state if the taxpayer's commercial domicile is in this state.

8. (a) Patent and copyright royalties are allocable to this state: (1) if and to the extent that the patent or copyright is utilized by the payer in this state, or (2) if and to the extent that the patent or copyright is utilized by the payer in a state in which the taxpayer is not taxable and the taxpayer's commercial domicile is in this state.

(b) A patent is utilized in a state to the extent that it is employed in production, fabrication, manufac- turing, or other processing in the state or to the extent that a patented product is produced in the state. If the basis of receipts from patent royalties does not permit allocation to states or if the accounting pro- cedures do not reflect states of utilization, the patent is utilized in the state in which the taxpayer's commercial domicile is located.

(c) A copyright is utilized in a state to the extent that printing or other publication originates in the state. If the basis of receipts from copyright royalties does not permit allocation to states or if the accounting procedures do not reflect states of utilization, the copyright is utilized in the state in which the taxpayer's commercial domicile is located.

9. All business income shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three.

10. The property factor is a fraction, the numerator of which is the average value of the taxpayer's real and tangible personal property owned or rented and used in this state during the tax period and the denomi- nator of which is the average value of all the taxpayer's real and tangible personal property owned or rented and used during the tax period.

11. Property owned by the taxpayer is valued at its original cost. Property rented by the taxpayer is valued at eight times the net annual rental rate. Net annual rental rate is the annual rental rate paid by the taxpayer less any annual rental rate received by the taxpayer from subrentals.

12. The average value of property shall be determined by averaging the values at the beginning and ending

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of the tax period but the tax administrator may require the averaging of monthly values during the tax period if reasonably required to reflect properly the average value of the taxpayer's property.

13. The payroll factor is a fraction, the numerator of which is the total amount paid in this state during the tax period by the taxpayer for compensation and the denominator of which is the total compensation paid everywhere during the tax period.

14. Compensation is paid in this state if:

(a) the individual's service is performed entirely within the state;

(b) the individual's service is performed both within and without the state, but the service performed without the state is incidental to the individual's service within the state; or

(c) some of the service is performed in the state and (1) the base of operations or, if there is no base of operations, the place from which the service is directed or controlled is in the state, or (2) the base of operations or the place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state.

15. The sales factor is a fraction, the numerator of which is the total sales of the taxpayer in this state during the tax period, and the denominator of which is the total sales of the taxpayer everywhere during the tax period.

16. Sales of tangible personal property are in this state if:

(a) the property is delivered or shipped to a purchaser, other than the United States government, within this state regardless of the f. o. b. point or other conditions of the sale; or

(b) the property is shipped from an office, store, warehouse, factory, or other place of storage in this state and (1) the purchaser is the United States government or (2) the taxpayer is not taxable in the state of the purchaser.

17. Sales, other than sales of tangible personal property, are in this state if:

(a) the income-producing activity is performed in this state; or

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(b) the income-producing activity is performed both in and outside this state and a greater proportion of the income-producing activity is performed in this state than in any other state, based on costs of per- formance.

18. If the allocation and apportionment provisions of this article do not fairly represent the extent of the taxpayer's business activity in this state, the taxpayer may petition for or the tax administrator may require, in respect to all or any part of the taxpayer's business activity, if reasonable:

(a) separate accounting;

(b) the exclusion of any one or more of the factors;

(c) the inclusion of one or more additional factors which will fairly represent the taxpayer's business activity in this state; or

(d) the employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer's income.

ARTICLE V. ELEMENTS OF SALES AND USE TAX LAWS

Tax Credit

1. Each purchaser liable for a use tax on tangible personal property shall be entitled to full credit for the combined amount or amounts of legally imposed sales or use taxes paid by him with respect to the same property to another state and any subdivision thereof. The credit shall be applied first against the amount of any use tax due the state, and any unused portion of the credit shall then be applied against the amount of any use tax due a subdivision.

Exemption Certificates, Vendors May Rely

2. Whenever a vendor receives and accepts in good faith from a purchaser a resale or other exemption certificate or other written evidence of exemption authorized by the appropriate state or subdivision taxing authority, the vendor shall be relieved of liability for a sales or use tax with respect to the transaction.

ARTICLE VI. THE COMMISSION

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Organization and Management

1. (a) The Multistate Tax Commission is hereby established. It shall be composed of one “member” from each party state who shall be the head of the state agency charged with the administration of the types of taxes to which this compact applies. If there is more than one such agency the state shall provide by law for the selection of the commission member from the heads of the relevant agencies. State law may pro- vide that a member of the commission be represented by an alternate but only if there is on file with the commission written notification of the designation and identity of the alternate. The attorney general of each party state or his designee, or other counsel if the laws of the party state specifically provide, shall be entitled to attend the meetings of the commission, but shall not vote. Such attorneys general, designees, or other counsel shall receive all notices of meetings required under paragraph 1(e) of this article.

(b) Each party state shall provide by law for the selection of representatives from its subdivisions af- fected by this compact to consult with the commission member from that state.

(c) Each member shall be entitled to one vote. The commission shall not act unless a majority of the members are present, and no action shall be binding unless approved by a majority of the total number of members.

(d) The commission shall adopt an official seal to be used as it may provide.

(e) The commission shall hold an annual meeting and such other regular meetings as its bylaws may provide and such special meetings as its executive committee may determine. The commission bylaws shall specify the dates of the annual and any other regular meetings, and shall provide for the giving of notice of annual, regular and special meetings. Notices of special meetings shall include the reasons therefor and an agenda of the items to be considered.

(f) The commission shall elect annually, from among its members, a chairman, a vice-chairman and a treasurer. The commission shall appoint an executive director who shall serve at its pleasure, and it shall fix his duties and compensation. The executive director shall be secretary of the commission. The commission shall make provision for the bonding of such of its officers and employees as it may deem appropriate.

(g) Irrespective of the civil service, personnel or other merit system laws of any party state, the executive director shall appoint or discharge such personnel as may be necessary for the performance of the functions of the commission and shall fix their duties and compensation. The commission bylaws shall

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provide for personnel policies and programs.

(h) The commission may borrow, accept or contract for the services of personnel from any state, the United States, or any other governmental entity.

(i) The commission may accept for any of its purposes and functions any and all donations and grants of money, equipment, supplies, materials and services, conditional or otherwise, from any governmental entity, and may utilize and dispose of the same.

(j) The commission may establish one or more offices for the transacting of its business.

(k) The commission shall adopt bylaws for the conduct of its business. The commission shall publish its bylaws in convenient form, and shall file a copy of the bylaws and any amendments thereto with the appropriate agency or officer in each of the party states.

(l) The commission annually shall make to the governor and legislature of each party state a report covering its activities for the preceding year. Any donation or grant accepted by the commission or services borrowed shall be reported in the annual report of the commission, and shall include the nature, amount and conditions, if any, of the donation, gift, grant or services borrowed and the identity of the donor or lender. The commission may make additional reports as it may deem desirable.

Committees

2. (a) To assist in the conduct of its business when the full commission is not meeting, the commission shall have an executive committee of seven members, including the chairman, vice-chairman, treasurer and four other members elected annually by the commission. The executive committee, subject to the provisions of this compact and consistent with the policies of the commission, shall function as provided in the bylaws of the commission.

(b) The commission may establish advisory and technical committees, membership on which may in- clude private persons and public officials, in furthering any of its activities. Such committees may consider any matter of concern to the commission, including problems of special interest to any party state and problems dealing with particular types of taxes.

(c) The commission may establish such additional committees as its bylaws may provide.

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Powers

3. In addition to powers conferred elsewhere in this compact, the commission shall have power to:

(a) Study state and local tax systems and particular types of state and local taxes.

(b) Develop and recommend proposals for an increase in uniformity or compatibility of state and local tax laws with a view toward encouraging the simplification and improvement of state and local tax law and administration.

(c) Compile and publish information as in its judgment would assist the party states in implementation of the compact and taxpayers in complying with state and local tax laws.

(d) Do all things necessary and incidental to the administration of its functions pursuant to this compact.

Finance

4. (a) The commission shall submit to the governor or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that state for presentation to the legislature thereof.

(b) Each of the commission's budgets of estimated expenditures shall contain specific recommendations of the amounts to be appropriated by each of the party states. The total amount of appropriations re- quested under any such budget shall be apportioned among the party states as follows: one-tenth in equal shares; and the remainder in proportion to the amount of revenue collected by each party state and its subdivisions from income taxes, capital stock taxes, gross receipts taxes, sales and use taxes. In deter- mining such amounts, the commission shall employ such available public sources of information as, in its judgment, present the most equitable and accurate comparisons among the party states. Each of the commission's budgets of estimated expenditures and requests for appropriations shall indicate the sources used in obtaining information employed in applying the formula contained in this paragraph.

(c) The commission shall not pledge the credit of any party state. The commission may meet any of its obligations in whole or in part with funds available to it under paragraph 1(i) of this article: provided that the commission takes specific action setting aside such funds prior to incurring any obligation to be met in whole or in part in such manner. Except where the commission makes use of funds available to it under paragraph 1(i), the commission shall not incur any obligation prior to the allotment of funds by the

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party states adequate to meet the same.

(d) The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws. All receipts and disbursements of funds handled by the commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the commission.

(e) The accounts of the commission shall be open at any reasonable time for inspection by duly con- stituted officers of the party states and by any persons authorized by the commission.

(f) Nothing contained in this article shall be construed to prevent commission compliance with laws relating to audit or inspection of accounts by or on behalf of any government contributing to the support of the commission.

ARTICLE VII. UNIFORM REGULATIONS AND FORMS

1. Whenever any two or more party states, or subdivisions of party states, have uniform or similar provi- sions of law relating to an income tax, capital stock tax, gross receipts tax, sales or use tax, the commission may adopt uniform regulations for any phase of the administration of such law, including assertion of jurisdiction to tax, or prescribing uniform tax forms. The commission may also act with respect to the provisions of Article IV of this compact.

2. Prior to the adoption of any regulation, the commission shall:

(a) As provided in its bylaws, hold at least one public hearing on due notice to all affected party states and subdivisions thereof and to all taxpayers and other persons who have made timely request of the commission for advance notice of its regulation-making proceedings.

(b) Afford all affected party states and subdivisions and interested persons an opportunity to submit relevant written data and views, which shall be considered fully by the commission.

3. The commission shall submit any regulations adopted by it to the appropriate officials of all party states and subdivisions to which they might apply. Each such state and subdivision shall consider any such regulation for adoption in accordance with its own laws and procedures.

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ARTICLE VIII. INTERSTATE AUDITS

1. This article shall be in force only in those party states that specifically provide therefor by statute.

2. Any party state or subdivision thereof desiring to make or participate in an audit of any accounts, books, papers, records or other documents may request the commission to perform the audit on its behalf. In responding to the request, the commission shall have access to and may examine, at any reasonable time, such accounts, books, papers, records, and other documents and any relevant property or stock of mer- chandise. The commission may enter into agreements with party states or their subdivisions for assistance in performance of the audit. The commission shall make charges, to be paid by the state or local gov- ernment or governments for which it performs the service, for any audits performed by it in order to re- imburse itself for the actual costs incurred in making the audit.

3. The commission may require the attendance of any person within the state where it is conducting an audit or part thereof at a time and place fixed by it within such state for the purpose of giving testimony with respect to any account, book, paper, document, other record, property or stock of merchandise being examined in connection with the audit. If the person is not within the jurisdiction, he may be required to attend for such purpose at any time and place fixed by the commission within the state of which he is a resident: provided that such state has adopted this article.

4. The commission may apply to any court having power to issue compulsory process for orders in aid of its powers and responsibilities pursuant to this article and any and all such courts shall have jurisdiction to issue such orders. Failure of any person to obey any such order shall be punishable as contempt of the issuing court. If the party or subject matter on account of which the commission seeks an order is within the jurisdiction of the court to which application is made, such application may be to a court in the state or subdivision on behalf of which the audit is being made or a court in the state in which the object of the order being sought is situated. The provisions of this paragraph apply only to courts in a state that has adopted this article.

5. The commission may decline to perform any audit requested if it finds that its available personnel or other resources are insufficient for the purpose or that, in the terms requested, the audit is impracticable of satisfactory performance. If the commission, on the basis of its experience, has reason to believe that an audit of a particular taxpayer, either at a particular time or on a particular schedule, would be of interest to a number of party states or their subdivisions, it may offer to make the audit or audits, the offer to be contingent on sufficient participation therein as determined by the commission.

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6. Information obtained by any audit pursuant to this article shall be confidential and available only for tax purposes to party states, their subdivisions or the United States. Availability of information shall be in accordance with the laws of the states or subdivisions on whose account the commission performs the audit, and only through the appropriate agencies or officers of such states or subdivisions. Nothing in this article shall be construed to require any taxpayer to keep records for any period not otherwise required by law.

7. Other arrangements made or authorized pursuant to law for cooperative audit by or on behalf of the party states or any of their subdivisions are not superseded or invalidated by this article.

8. In no event shall the commission make any charge against a taxpayer for an audit.

9. As used in this article, “tax,” in addition to the meaning ascribed to it in Article II, means any tax or license fee imposed in whole or in part for revenue purposes.

ARTICLE IX. ARBITRATION

1. Whenever the commission finds a need for settling disputes concerning apportionments and allocations by arbitration, it may adopt a regulation placing this article in effect, notwithstanding the provisions of Article VII.

2. The commission shall select and maintain an arbitration panel composed of officers and employees of state and local governments and private persons who shall be knowledgeable and experienced in matters of tax law and administration.

3. Whenever a taxpayer who has elected to employ Article IV, or whenever the laws of the party state or subdivision thereof are substantially identical with the relevant provisions of Article IV, the taxpayer, by written notice to the commission and to each party state or subdivision thereof that would be affected, may secure arbitration of an apportionment or allocation, if he is dissatisfied with the final administrative de- termination of the tax agency of the state or subdivision with respect thereto on the ground that it would subject him to double or multiple taxation by two or more party states or subdivisions thereof. Each party state and subdivision thereof hereby consents to the arbitration as provided herein, and agrees to be bound thereby.

4. The arbitration board shall be composed of one person selected by the taxpayer, one by the agency or agencies involved, and one member of the commission's arbitration panel. If the agencies involved are

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unable to agree on the person to be selected by them, such person shall be selected by lot from the total membership of the arbitration panel. The two persons selected for the board in the manner provided by the foregoing provisions of this paragraph shall jointly select the third member of the board. If they are unable to agree on the selection, the third member shall be selected by lot from among the total membership of the arbitration panel. No member of a board selected by lot shall be qualified to serve if he is an officer or employee or is otherwise affiliated with any party to the arbitration proceeding. Residence within the jurisdiction of a party to the arbitration proceeding shall not constitute affiliation within the meaning of this paragraph.

5. The board may sit in any state or subdivision party to the proceeding, in the state of the taxpayer's in- corporation, residence or domicile, in any state where the taxpayer does business, or in any place that it finds most appropriate for gaining access to evidence relevant to the matter before it.

6. The board shall give due notice of the times and places of its hearings. The parties shall be entitled to be heard, to present evidence, and to examine and cross-examine witnesses. The board shall act by majority vote.

7. The board shall have power to administer oaths, take testimony, subpoena and require the attendance of witnesses and the production of accounts, books, papers, records, and other documents, and issue com- missions to take testimony. Subpoenas may be signed by any member of the board. In case of failure to obey a subpoena, and upon application by the board, any judge of a court of competent jurisdiction of the state in which the board is sitting or in which the person to whom the subpoena is directed may be found may make an order requiring compliance with the subpoena, and the court may punish failure to obey the order as a contempt. The provisions of this paragraph apply only in states that have adopted this article.

8. Unless the parties otherwise agree the expenses and other costs of the arbitration shall be assessed and allocated among the parties by the board in such manner as it may determine. The commission shall fix a schedule of compensation for members of arbitration boards and of other allowable expenses and costs. No officer or employee of a state or local government who serves as a member of a board shall be entitled to compensation therefor unless he is required on account of his service to forego the regular compensa- tion attaching to his public employment, but any such board member shall be entitled to expenses.

9. The board shall determine the disputed apportionment or allocation and any matters necessary thereto. The determinations of the board shall be final for purposes of making the apportionment or allocation, but for no other purpose.

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10. The board shall file with the commission and with each tax agency represented in the proceeding: the determination of the board; the board's written statement of its reasons therefor; the record of the board's proceedings; and any other documents required by the arbitration rules of the commission to be filed.

11. The commission shall publish the determinations of boards together with the statements of the reasons therefor.

12. The commission shall adopt and publish rules of procedure and practice and shall file a copy of such rules and of any amendment thereto with the appropriate agency or officer in each of the party states.

13. Nothing contained herein shall prevent at any time a written compromise of any matter or matters in dispute, if otherwise lawful, by the parties to the arbitration proceeding.

ARTICLE X. ENTRY INTO FORCE AND WITHDRAWAL

1. This compact shall enter into force when enacted into law by any seven states. Thereafter, this compact shall become effective as to any other state upon its enactment thereof. The commission shall arrange for notification of all party states whenever there is a new enactment of the compact.

2. Any party state may withdraw from this compact by enacting a statute repealing the same. No with- drawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal.

3. No proceeding commenced before an arbitration board prior to the withdrawal of a state and to which the withdrawing state or any subdivision thereof is a party shall be discontinued or terminated by the withdrawal, nor shall the board thereby lose jurisdiction over any of the parties to the proceeding neces- sary to make a binding determination therein.

ARTICLE XI. EFFECT ON OTHER LAWS AND JURISDICTION

Nothing in this compact shall be construed to:

(a) Affect the power of any state or subdivision thereof to fix rates of taxation, except that a party state shall be obligated to implement Article III 2 of this compact.

(b) Apply to any tax or fixed fee imposed for the registration of a motor vehicle or any tax on motor fuel,

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. V.T.C.A., Tax Code § 141.001 Page 17

other than a sales tax; provided that the definition of “tax” in Article VIII 9 may apply for the purposes of that article and the commission's powers of study and recommendation pursuant to Article VI 3 may ap- ply.

(c) Withdraw or limit the jurisdiction of any state or local court or administrative officer or body with respect to any person, corporation or other entity or subject matter, except to the extent that such juris- diction is expressly conferred by or pursuant to this compact upon another agency or body.

(d) Supersede or limit the jurisdiction of any court of the United States.

ARTICLE XII. CONSTRUCTION AND SEVERABILITY

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters.

CREDIT(S)

Acts 1981, 67th Leg., p. 1528, ch. 389, § 1, eff. Jan. 1, 1982.

Current through the end of the 2013 Third Called Session of the 83rd Legislature

(C) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. B ADDENDUM to VOLUME 1 of FLORIDA STATUTES, 1971

The Florida Legislature met in special session between November 29 and Decem- ber 9, 1971, and enacted a number of measures appropriate for inclusion in the Florida Statutes . However, the printing of this 1971 edition had by then proceeded too far to permit incorporation of these measures at the appropriate places in these volumes. Therefore, it has been decided to publish the product of the special session as Addenda to volumes 1 and 2. However, entries reflecting the special session have been inserted at the proper places in the tables of section changes, tracing table, and alphabetical index .

The format is the same as that used for the Supplement to the Florida Statutes, 1969. The full text of each section amended during the special session is published in the Addendum to the volume in which it would otherwise have appeared. Repealed sections are identified by catchline and bracketed note only. In order to make the Addenda more noticeable, colored paper has been used. §199.032 ADDENDUM §212.02

CHAPTER 199 or trailer ramps, as hereinafter defined in this INTANGIBLE PERSONAL PROPERTY chapter; TAX ACT (c) The producing, fabricating, processing, printing or imprinting of tangible personal PART I property for a consideration for consumers who GENERAL PROVISIONS furnish either directly or indirectly the ma- terials used in the producing, fabricating, pro- 199.032 Levy. cessing, printing or imprinting; and *199.032 Levy.-There is hereby levied, to (d) The furni!;hing, preparing or serving be assessed and collected as provided by this for a con:sideration of any tangible personal property for wnsumption on or off the prem- chapter: ise:,; of the person furnishing, preparing, or (1) An annual tax of one mill on the dollar serving such tangible personal property which of the just valuation of all intangible personal includes the sale of meals or prepared food by property except money as defined in §199.023 an employer to his employees. (1Xa), and except notes, bonds, and other obligations for payment of money which are (e ) A transaction whereby the possession of secured by mortgage, deed of trust, or other property is transferred but the seller retains tit!~ as security for the payment of the price. lien upon real property situated in the state; (2) A nonrecurring tax of two mills on the (3) (a) "Retail sale" or a "sale at retail" dollar of the just valuation of all notes, bonds, means a sale to a consumer or to any person and other obligations for payment of money, for any purpose other than for resale in the which are secured by mortgage, deed of trust, or form of tangible personal property, and shall other lien upon real property situated in the mean and include all such transactions that state. may be made in lieu of retail sales or sales at retail. A resale must be in strict compliance Hislory.-§1, ch . 71·134: §1. ch. 71·987. •Note.-Section, as amended. ~ffective July I. 1972. with rules and regulations <•nd any dealer mak- ing a sale for resale which is not in strict com- pliance with rules and regulations shall him- self be liable for and pay the tax. (b ) The terms "retail sales," "sales at re- tail," "use," "storage," and "consumption" shall CHAPTER 212 include the sale, use, storage or consumption TAX ON SALES, of all tangible advertising materials imported USE AND OTHER TRANSACTIONS or caused to be imported into this state. Tangible advertising material shall include 212.02 Definitions. displays, display containers, brochures, cata- 212.03 Transient rentals tax; rate, procedure, logs, pt·ice lists, point of sale advertising and enforcement, etc. technical manuals or any tangible personal 212.031 Lease or rental of real property. property which does not accompany the prod- uct to the ultimate consumer. 212.08 Sales, rental, storage, use tax; specified (c) The terms "retail sales," "sale at retail," exemptions. "use," "storage," and "consumption" &hall not include materials, containers, labels, sacks, or 212.02 Definitions.- The following terms bags intended to be used one time only for pack· and phrases when used in this chapter, shall aging tangible personal property for sale, and have the meaning ascribed to them in this shall not include the sale, use, storage, or con- section, except where the context clearly indi- sumption of industrial materials for future pro- cates a different meaning: cessing, manufacture, or conversion into articles (1) "Person" includes any individual, firm, of tangible personal property for resale when copartnership, joint adventure, association, cor- such industrial materials become a component poration, estate, trust, business trust, receiver, or ingredient of the finished product. However, syndicate, or other group or combination acting said terms shall include the sale, use, storage, or as a unit, and shall include any political sub- consumption of tangible personal property, in- division, municipality, state agency, bureau or cluding fuels. used and dissipated in fabricat- department, and the plural as well as the singu- ing, converting, or processing tangible personal lar number. property for sale. (2) "Sale" means and includes: (d ) The term "gross sales" means the sum (a) Any transfer of title or possession, or total of all retail sales of tangible personal both, exchange, barter, lease or rental, condi· property as defined herein, without any deduc- tiona! or otherwise, in any manner or by any tion whatsoever of any kind or character, ex- means whatsoever of tangible personal prop- cept as provided in this chapter. erty for a consideration; (4) "Sales price" means the total amount (b) The rental of living quarters, sleeping paid for tangible personal property, including or housekeeping accommodations in hotels, any services that are a part of the sale, valued apartment hou~es or rooming houses, touri:st in money, whether paid in money or othendse, 1966 §212.02 ADDENDUM §212.02

and includes any amount for which credit is (f) A "trailer camp" is a place where space given to the purchaser by the seller. without is offered, with or without service facilities, by any deduction therefrom on account of the CO!-;t any persons or municipality to the public for of the prope1ty sold, the cost of materials used, the parking and accommodation of two or more labor or service t:ost, interest charged, losses automobile trailers which are used for lodging, or any other expense whatweYer. Sales price for either a direct money consideration or an also includes the consideration fo1· a transac- indirect benefit to the lessor or owner in con- tion which requires both labor and material to nection with a related business, such space alter, remodel, maintain, adjust or repair tan- being hereby defined as living quarters, and gible personal property. Trade-ins or discounts the rental price thereof shall include all service allowed and taken at the time of sale shall not charges paid to the lessor. be included within the purview of this sub- (g) "Lease," "let" or "rental" also means section. the leasing or rental of tangible personal prop- (5) ''Cost price" means the adual cost of articles of tangible personal property without erty and the possession or use thereof by the anv deductions therefrom on account of the cost lessee or rentee fo1· a consideration, without or'materials used, IaLor or servit:e costs, trans- transfe1· of the title of such property, except portation charges, o1· any expenses whatsoeyer. as expressly provided to the contrary herein. Provided that, where two taxpayers, in con- (6) "Lease," "let," or "rental" means leas- nection with the interchange of facilities, 1·ent ing or renting of Jiving quarters, sleeping or or lease property, each to the other, for use housekeeping accommodations in hotels, apart- in providing or fumishing any of the services ment houses, rooming houses, tourist or trailer mentioned in §167.4!31, the term lease or rental ramps and real property, the same being de- shall mean only the net amount of rental in- fined as follows: volved. (a) Every building or other structure kept, used, maintained, advertised as or held out to *(h) "Real property" means any interest in the public to be a place where sleeping accom- the surface of real property unless said prop- modations are supplied fo1· pay to transient or erty is: permanent guests or tenants, in which ten or 1. Assessed as agricultural property under more rooms are furnished for the accommoda- ~ 193.461. tion of s·uch guests, and having one or more 2. Used exclusively as dwelling units. dining rooms or cafes where meals or lunches 3. Property subject to tax on parking, are served to such transient or permanent docking or storage spaces under ~212.03 (6). guests, such sleeping accommodations and din- (7) "Storage" mear.s and includes any keep- ing rooms or cafes being conducted in the same ing or retention in this state of tangible per- building or buildings in connection therewith, sonal property for use or consumption in this shall, for the purpose of this chapter, be state, or for any purpose other than sale at re- deemed a hotel. tail in the regular course of busines s. (b) Any building or part thereof, where (8) "Us e" means and includes the exercise separate accommodations for two or more fam- of any right or power over tangible personal ilies living independently of each othe1· are property incident to the ownership thereof, or supplied to transient or permanent guests or interest therein, except that it shall not include tenants, shall for the purpose of this chapter the sale at retail of that pro·perty in the regular be deemed an apartment house. course of business. (c) Every house, boat, vehicle, motor court, (9) "Business" means any activity engaged trailer court or other structure or any place or in by any person, or caused to be engaged in location kept, used, maintained, advertised or by him, with the object of private or public held out to the publit: to be a place where living gain, benefit, or advantage, either direct or in- quarters, sleeping or housekeeping, accommo- direct. Except for sales of motor vehicles, the dations are supp lied for pay to transient or term "business" shall not be construed in this permanent guests or tenants, whether in one chapter to include occasional or isolated sales or adjoining buildings, shall for the purpose of or transactions involving tangible personal prop- this chapter be deemed a rooming house. erty by a person who does not hold himself out as engaged in business, but shall include other (d) In all hotels, apartment houses and charges for the sale or rental of tangible per- rooming houses within the meaning of this sonal property, sales of or charges of admis- chapter, the parlor, dining room, sleeping sion, communication services, all rentals and porches, kitchen, office and sample rooms shall leases of living quarters, other than low rent be construed to mean rooms. housing operated under chapter 421, sleeping or (e) A "tourist camp" is a place where housekeeping accommodations in hotels, apart- two or more tents, tent houses, or camp cot- ment houses, rooming houses, tourist or trailer tages are located and offered by a person or camps, and all rentals of real property, other municipality for sleeping or eating accommoda- than low rent housing operated under chapter tions, most generally to the transient public 421, all leases or rentals of parking lots or ga- for either a direct money consideration or an rages for motor vehicles, docking or storage indirect benefit to the lessor or owner in con- spaces for boats in boat docks or marinas as de- nection with a related business. fined in this chapter and made subject to a tax 1967 §212.02 ADDENDUM §212.03

imposed by this chapter. Any tax on such sales, (17) "In this state" or "in the state" means charges, rentals, admissions, or other transac- within the exterior limits of Florida and in- tions made subject to the tax imposed by this cludes all territory within these limits owned chapter shall be collected by the state, county, by or ceded to the United States. municipality, any political subdivision, agency, Hlslor:r.-12. ch. 263!e, !e48; Ul-3, ch. 26811, 1851; 11. ch. bureau or department or other state or local gov- 28883, 1855; 113, ch. 58·1: Ul-4, ch. 58·288; !3. ch. 61-214; 11. ch. 63·526; 11. ch. 63·253 ; Ul-3, ch . 65-329 ; t5, ch. 65-311; ernmental instrumentality in the same manner !2. ch. 65-420; 11. ch. 67·180 : 111. 2, ch. 68-21 ; 11. ch. 68-118; as other dealers, unless specifically exempted by §§21, 35, ch. 69-106; §§1-3. ch. 69-222: §1, ch. 70-206; §1. ch. 71 -360; §47, ch. 71 -377; §2, ch. 71-986. this chapter. •Note.-Paragraph (h), as amended, effectiv• March 1, 1972. (10) "Retailer" means and includes every person engaged in the business of making sales 212.03 Transient rentals tax; rate, pro- at retail, or for distribution, or use, or con- cedure, enforcement, etc.- sumption, or storage to be used or consumed in this state. (1) It is hereby declared to be the legisla- tive intent that every person is exercising a (11) The term "department" means the taxable privilege who engages in the business department of revenue. of renting, leasing or letting any living quar- (12) "Tangible personal property" means ters, sleeping or housekeeping accommodations and includes personal property which may be in, from, or a part of, or in connection with seen, weighed, measured, or touched or is in any hotel, apartment house, rooming house, any manner perceptible to the senses, including tourist or trailer camp, as hereinbefore defined electric power or energy, boats, motor vehicles in this chapter. For the. exercise of said priv- as defined in §320.01(1), aircraft as defined in ilege a tax is hereby levied as follows: in the §330.01, and all other types of vehicles. The amount equal to four per cent of and on the term "tangible personal property" shall not in- total rental charged for such living quarters, clude stocks, bonds, notes, insurance, or other sleeping or housekeeping accommodations by obligations or securities; intangibles as defined the person charging or collecting the rental; by the intangible tax law of the state; or pari· provided that such tax shall apply to hotels, mutuel tickets sold or issued under the racing apartment houses, rooming houses, tourist or laws of the state. trailer camps, as hereinbefore defined in this (13) The term "use tax" referred to in this chapter, whether or not there be in connection chapter includes the use, the consumption, the with any of the same, any dining rooms, cafes distribution, and the storage as herein defined. or other places where meals or lunches are sold (14) The term "intoxicating" or "alcoholic or served to guests. beve1·ages" 1·eferred to in this chapter includes (2) The tax provided for herein shall be in all such beverages as are so defined or may be addition to the total amount of the rental and hereafter defined by the Ia ws of the state. shall be charged by the lessor or person receiv- (15) The terms "cigarettes" or "tobacco" ing the rent in and by said rental arrangement or "tobacco products" referred to in this chap- to the lessee or person paying the rental, and ter include all such products as are defined or shall be due and payable at the time of the re- may be hereafter defined by the laws of the ceipt of such rental payment by the lessor or state. person, as defined in this chapter, who receives said rental or payment. The owner, lessor or (16) The term "admissions" means and in- person receiving the rent shall remit the tax to cludes the net sum of money after deduction the department at the times and in the manner of any federal taxes for admitting a person hereinafter provided for dealers to remit taxes or vehicle or persons to any place of amuse- under this chapter. The same duties imposed ment, sport, or recreation or for the privilege by this chapter upon dealers in tangible per- of entering or staying in any place of amuse- sonal property respecting the collection and re- ment, sport or recreation, including but not mission of the tax, the making of returns, the limited to theaters, outdoor theaters, shows, keeping of books, records and accounts and the exhibitions, games, races or any place where compliance with the rules and regulations of charge is made by way of sale of tickets, gate the department in the administration of this charges, seat charges, box charges, season chapter shall apply to and be binding upon all pass charges, cover charges, greens fees, par- persons who manage or operate hotels, apart- ticipation fees, entrance fees or other fees or ment houses, rooming houses, tourist and receipts of anything of value measured on an trailer camps, and to all persons who collect or admission or entrance or length of stay or seat receive such rents on behalf of such owner or box accommodations in any place where there lessor taxable under this chapter. is any exhibition, entertainment, including admissions to performances of philharmonic (3) Where rentals are received by way of associations, opera guilds, little theaters, and property, goods, wares, merchandise, services similar organizations, amusement, sport or or other things of value, the tax shall be at recreation, and all dues paid to private clubs the rate of four per cent of the value of said providing recreational facilities, including but property, services or other things of value. not limited to golf, tennis, swimming, yachting ( 4) The tax levied by this section shall not and boating facilities. apply to, be imposed upon, or collected from 1968 §212.03 ADDENDUM §212.031

any person who shall reside continuously longer 212.031 Lease or rental of real property.- than twelve months at any one hotel, apartment (1)*(a) It is declared to be the legislative house, rooming house, tourist or trailer camp, intent that every person is exercising a taxable and shall have paid the tax levied by this privilege who engages in the business of rent- section for twelve months of residence in any ing, leasing, or letting any real property unless ont! hotel, rooming house, apartment house, such property is: tourist or trailer camp. Notwithstanding other 1. Assessed as agricultural property under provisions of this chapter, no tax shall be im- posed upon rooms provided guests when there §193.461. is no consideration involved between guest and 2. Used exclusively as dwelling units. the public lodging establishment. ~1. Property subject to tax on parking, dock- (5) The tax imposed by this section shall ing or storage spaces under §212.03 (6). constitute a lien on the property of the lessee *(b) When a lease involves multiple use of or rentee of any sleeping accommodations in the real property wherein a part of the real prop- same manner as and shall be collectible as are erty is subject to the commercial rental tax liens authorized and imposed by §§713.68 and herein, and a part of the property would be 713.69. excluded from the tax under subparagraphs (6) It is the legislative intent that every 1., 2., or 3. of this subsection, the depart- person is engaging in a taxable privilege who ment shall determine from the lease and such leases or rents parking or storage spaces for other information as may be available, that motor vehicles in parking lots or garages or portion of the total rental charge which is who leases or rents docking or storage spaces exempt from the tax imposed by this section. for boats in boat docks or marinas. For the (c) For the exercise of such privilege a exercise of this privilege a tax is hereby levied tax is levied in the amount equal to four per at the rate of four per cent on the total renta l cent of and on the total rent charged for such charged. real property by the person charging or col- *(7)(a) The tax levied by this section shall lecting the rental. not apply to or be imposed upon or collected (d) Where the rental of any such real on the basis of rentals to any person who resides property is paid by way of property, goods, in any building or group of buildings intended wares, merchandise, services or other thing of primarily for lease or rent to persons as their value, the tax shall be at the rate of four permanent or principal place of residence. per cent of the value of the property, services (b) It is the intent of the legislature that this or other things of value. subsection provide tax relief for persons who (2) (a) The tenant actually occupying, using rent living accommodations rather than own or entitled to the use of any pr

and the compliance with the rules and regula- and funera Is. Funeral directors shall pay tax tions of the department in the administration on all tangible personal property used by them of this chapter shall apply to and be binding in their business. This subsection shall be upon all persons who manage any leases or strictly construed and enforced. operate real property, hotels, apartment houses, (3) EXEMPTIONS, PARTIAL; CERTAIN rooming houses, tourist and trailer camps, and FARM EQUIPMENT.-There shall be taxable to all persons who collect or receive such rents at the rate of three percent the sale, use , con- on beha lf of such owner or lessor taxable sumption, or storage for use in this state of under this chapter. self-propelled or power-drawn farm equipment (4) The tax imposed by this section shall used exclusively by a farmer on a farm owned, constitute a lien on the property of the }essee leased, or sharecropped by him in plowing, of any real estate in the same manner as, and planting, cultivating, or harvesting crops. The shall be collectible as are lien s authorized and rental of self-propelled or power-drawn farm imposed by §§713.68 and 713.69. equipment shall be taxed at the rate of four History.-§6. ch. 69·222; §§21, 3.1, ch. 69-106; §3 . ch. 71-986. "Note.-As amended, pa ragra phs (a) a nd (b) of subsection (I) percent. are effective March I. 1972. (4) EXEMPfiONS, ITEMS BEARING OTHER EXCISE TAXES, ETC.-Also exempt 212.08 Sales, rental, storage, use tax; speci- are water (not exempting mineral water or fied exemptions.-The sa le at retail, the rental, carbonated water); all fuels used by a public or the use, the consumpti on, the distribution and private utility, including municipal corporations the storage to be used or cons umed in this state, of the following tangible personal prop· and rural electric cooperative associations , in the generation of electric power or energy for sale; erty, are hereby s pec ifica lly exempt from the and motor fuels and special fuels on which a tax imposed by this cha pter. tax is imposed by ·chapter 206. All other fuels (1) EXEMPfiONS; GENERAL GROCER- are taxable, except tha,t those used to transport IES.-There shall be exempt from the tax im- persons or property in interstate or foreign posed by this chapter foods and drinks for human commerce are taxable only to the extent provid- consumption and candy, but only when the price ed herein. The basis of the tax shall be the ratio at which said candy is sold is twenty-five cents or of intrastate mileage to interstate or foreign less. Unless the exemption provided by sub- mileage traveled by the carrier, during the pre- section (7)(b) for school lunches pertains, none vious fiscal year of the carrier, such ratio to be of such items of food and drink shall mean: determined at the close of the carrier's fiscal (a) Foods and drinks served, prepared, or year. This ratio shall be applied each month to sold in or by restaurants, drugstores, lunch the total purchases made in this state by the counters, cafeterias, hotels, or other like places carrier of gasoline and other fuels to establish of business or by any business or place required that portion of the total used and consumed in by law to be licensed by the division of hotels and intrastate movement and subject to tax under restaurants of the department of business this chapter. Alcoholic beverages and malt bev- regulation; erages are not exempt. The terms "alcoholic bev- (b) Foods and drinks sold ready for im- erages" and "malt beverages" as used in this mediate consumption from *vending machines, subsection shall have the same meaning ascribed pushcarts, motor vehicles , or any other form to them in §561.01(3) and (7), respectively. It is of vehicle; determined by the legislature that the classifica- (c) Soft drinks; or tion of alcoholic beverages made in this sub- (d) Foods cooked and prepare~ on _the section for the purpose of extending the tax im- seller's premises and sold ready for 1mme~1ate posed by this chapter is reasonable and just, and consumption either on or off the premises. it is intended that such tax be separate from, l 2 ) EXEM PTlO:\ S, ;\lEDI CAL.-There shall and in addition to, any other tax imposed on al be exempt from the tax impos ed by this chap- coholic beverages. ter medicine comp ounded in a retail establish- (5) EXEMPTIONS; ACCOUNT OF USE.- ment bv a ph a rmacist licen sed by the state There shall be exempt from the tax imposed ac co rdii1g to a n indi\"idual prescription or pre- by this chapter nets designed and used exclu- scriptions written by a practitioner of the sively by commercial fisheries; feeds for rais- hea ling arts licen sed by the state, and common ing poultry and live stock on farms and for household remedies r ec ommended and gener- feeding dairy cows; fertilizers, insecticides and a llv so ld f or the relief of pain, ailments , dis- fungicides used for application on crops or tre-ss or di sorders of the human body, accord- groves ; portable containers used for processing ing to a list presc.ribed and approved by the farm products; field and garden seeds; nurs- division of hea lth of the department of health ery stock, seedlings, cuttings or other pro- and rehabilitative services, which said list shall pagative material purchased for growing on be certified to th e department of revenue from or growing stock; cloth, plastic, and other tim e to time and be in c luded in the rules pro- similar materia ls used for shade, mulch, pro- mulgated by the department; artific_ial eyes tection from frost or insects on a farm ; pro- and limbs, eyeglasses, dentures, heanng_ a1ds, vided that such exemption shall not be allowed crutches, prosthetic and orthopedic applrances unle ss the purch aser or lessee signs a certifi- 1970 §212.08 ADDENDUM §212.08

cate stating that the item to be exempted is 2. Educational institutions shall mean state for the exclusive use designated herein. tax supported or parochial, church and non- (6) EXEMPTIONS; POLITICAL SUBDI- profit private schools, colleges or universities VISIONS, COMMUNICATIONS.-There shall conducting regular classes and co rses of study also be exempt from the tax imposed by this required for accreditation by or membership in the southern association of colleges and sec- chapter sales made to the United States gov- ondary schools, department of education or ernment, the state, or any county, municipality or the Florida council of independent schools. political subdivision of this state; provided this Nonprofit libraries, art galleries and musetims exemption shall not include sales of tangible open to the public are defined as educational personal property made to contractors employed institutions and eligible for exemptio.n. either directly or as agents of any such govern- 3. Charitable institutions shall mean only ment or political subdivision thereof when such nonprofit corporations operating physical fa- tangible personal property goes into or becomes cilities in Florida at which are provided char- a part of public works owned by such govern- itable services, a reasonable percentage of ment or politicai subdivision thereof, except which shall be without cost to those unable to public works in progress or for which bonds or pay. revenue certificates have been validated on or (d) Hospital meals and 1·ooms.-Also ex- before August 1, 1959; and further provided this empt from payment of the tax imposed by exemption shall not include sales, rental, use, this chapter on rentals and meals are patients consumption, or storage for use in any political and inmates of any hospital or other physical subdivision or municipality in this state of ma- plant or facility designed and operated pri- chines and equipment and parts and accessories marilv for the care of persons who are ill, therefor used in the generation, transmission, or aged: infirm, mentally or physically incapaci- distribution of electrical energy by systems tated or otherwise dependent on special care owned and operated by a political subdivision in or attention. this state except sales, rental, use, consumption t.e) Professional services.- or storage for which bonds or revenue certifi- !. Also exempted are professional, insurance cates are validated on or before January 1, 1973, or personal service transactions which involve for transmission or distribution expansion. Like- sales as inconsequential elements for which no wise exempt are newspapers, film rentals, when separate charges are made. an admission is charged for viewing such film, 2. The above exempted personal service and charges for services rendered by radio and transactions do not exempt the sale of infor- television stations, including line charges, talent mation services involving the furnishiilg of fees or license fees and charges for films, video printed, mimeographed, multigraphed matter tapes, and transcriptions used in producing radio or matter duplicating written or printed matter or television broadcasts. in any other manner, other than professional (7) MISCELLANEOUS EXEMPTJONS.- services and services of employees, agents or (a ) Religious, charitable and educational.- other persons acting in a representative or ndu- There shall be exempt from the tax imposed by ciary capacity or information services furnished this chapter articles of tangible personal prop- to newspapers and radio and television sta- erty sold or leased direct to or by churches or tions. Information services sha)) mean and in- sold or leased to, nonprofit religious, nonprofit clude the services of collecting, compiling or educational, or nonprofit charitable institutions analyzing information of any kind or nature and used by such institutions in carrying on and furnishing reports thereof to other their customary nonprofit religious, nonprofit persons. educational, or nonprofit charitable activities, (f) Magazines.-There shall likewise be ex- including church cemeteries. empt from the tax imposed by this chapter sub- tb) School books and school lunches.-This scriptions to magazines entered as secon~ class exemption shall apply to school books used in mail sold for an annual or longer penod of regularly prescribed courses of study, and school time. lunches served to students, in public, parochial (g) Volunteer fire depm·tments.-Also ex- or nonprofit schools operated for and attended empt are fire fighting and resc ue service by pupils of grades one through twelve. School equipment and supplies purchased by volunteer books and food sold or served at junior colleges fire departments, duly chartered under the and other institutions of higher learning are Florida Statutes as corporations not for profit. taxable. (h) Guide dogs for the blind.-Also exempt (c) Rest1·ictive definitions.- The pwvisions are the sale or rental of guide dogs for the blind, of this section authorizing exemptions from tax commonly referred to as "seeing-eye dogs," shall be strictly define(i, limited and applied in and the sale of food or other items for said guide each category as follows: dogs or for consumption or use by such dogs. 1. Religious institutions shall mean churches **(i) Also exempt from payment of the tax and established phys ical places for worship in imposed by this chapter are sales of utilities this state at which nonprofit religious services to residential households in this state by utility and activities are rel{ularly conducted and car- companies who pay the gross receipts ta" ried on. imposed under §203.01. 1971 §212.08 ADDENDUM §214.71

(8) PARTIAL EXEMPTIONS, VESSELS §§1 2·16. 19, ch . 69-222; §§2. 3, ch . 70·206; §2. ch . 70·373; §7. ch. 71·360; §1. c h . 7 1·985. ENGAGED IN INTERSTATE OR FOREIGN •Note.-The taK on vendin g m achin es ta kes effect Oc to ber 1. 1971. COMMERCE.-All vessels and parts thereof .. Note.-Effective March 1, 1972. used to transport persons or property in inter- state or foreign commerce shall be subject to the taxes imposed in this chapter only to the extent provided herein. The basis of the tax shall be the ratio of intrastate mileage to in- terstate or foreign mileage traveled by the CHAPTER 213 carrier during the previous fiscal year. The ratio would be determined at the close of the STATE REVENUE LAWS; GENERALLY carrier's fiscal year. This ratio applied to the total purchases by the carriers of vessels and PART II parts thereof each month to establish that por- MULTISTATE TAX COMPACT tion of the total used and consumed in intra- state movement and subject to tax at the 213.15 Multistate tax compact. applicable rate. Vessels and parts thereof used to transport persons or property in interstate and foreign commerce are hereby determined 213.15 Multistate tax compact.-[Articles to be susceptible to a distinct and separate classification for taxation under the provisions III and IV of compact repealed by §1, ch. 71-980.] of this chapter. (9) PARTIAL EXEMPTIONS, VEHICLES ENGAGED IN INTERSTATE OR FOREIGN COMMERCE.-Vehicles and parts thereof used to transport persons or property in interstate or foreign commerce are subject to tax im- posed in this chapter only to the extent pro- vided herein. The bas is of the tax shall be CHAPTER 214 the ratio of intrasta te mileage to interstate ADMINISTRATION OF DESIGNATED or foreign mileage traveled by the carrier NONPROPERTY TAXES during tih e previous fis cal year of the carrier, such ratio to be determined at the close of PART IV the carrier's fiscal year. This ratio shall be APPORTIONMENT applied each month to the total purchases by the carriers of vehicles and parts thereof 214.71 Apportionment; general method. which are used in Florida to establish that portion of the total used and consumed in intrastate movement and subject to tax under 214.71 Apportionment; general method.- this chapter. Except as otherwise provided in §§214.72 (10) No transactions shall be exempt from and 214.73, the base upon which any tax made the tax imposed by this chapter except those applicable to this chapter shall be apportioned expressly exempted herein. Except for ~ 423 . 02, shall be determined by multiplying same by a all special or general laws granting tax ex- fraction the numerator of which is the sum of the emptions, to the extent they may be incon- property factor, the payroll factor, and the sales sistent or in conflict with this chapter, includ- factor and the denominator of which is three. In ing but not limited to the following designated the event any of the factors described in sub- laws, shall yield to and be superseded by the sections (1), (2), or (3) has a denominator which provisions of this subsection: §~153.76, 183.14, is zero or is determined by the department to be 184.17, 258.14, 315.11, 323.15 ( 6)' 340.20, 348.122, insignificant, the denominator of the apportion- 348.65, 348.762, 349.13, 37 4.132, 616.07' 623.09, ment fraction shall be reduced by the number of 637.131, 637.151, 637.291, and 637.311 and the such factors. following Laws of Florida, acts of the year (1) The property factor is a fraction the indicated: §31, ch. 30843, 1955; §19, ch. 30845, numerator of which is the average value of the 1955; §12, ch. 30927, 1955; ~ 8. ch. 31179, 1955; taxpayer's real and tangible personal property §15, ch. 31263, 1955 ; §13, ch. 31343, 1955; owned or rented and used in this state during §16, ch. 59-1653; §13, ch. 59-1356; §12, ch. 61- 2261; §19, ch. 61-2754; §10, ch. 61-2686; §11, the taxable year or period and the denominator ch. 63-1643; ~11. ch. 65-1274; §16, ch. 67-1-l..JG; of which is the average value of such property and ~10, ch. 67-1681. owned or rented and used everywhere. (a) Real and tangible personal property Hlslory.-§8, ch . 26319, 1949 ; If!, 2, ch. 26323, 1949; f9, ch . 26811. 1951; §I, ch. 28082. 1953; 111. 33, ch. 29615, 1955; 116-8, owned by the taxpayer shall be valued at original ch. 29883, 1955; 11. ch. 51-16 ; §I, ch. 51-398; fl. ch. 51·821 ; cost. Rea} and tangible personal property rented §1, ch. 57·1968; §1, ch. 57· 1971; §1. ch. 59·287; !1!11. ~ . ch. by the taxpayer shall be valued at eight times 59-402; §11, 2. ch. 59-448; tl . ch. 61-464; 12. ch. 61-216; 11. ch. 61-274; 11. ch. 63-253; H5, 6, ch. 63-526; §1, ch. 63-565; the net annual rental rate paid by the taxpayer 16. ch. 65-190; §I, ch. 65-358 ; 1§1-9, ch . 65-329; 11. ch . 65-331 ; less any annual rental rate received from sub- !5. ch. 65-311; 12. ch . 65-420 : i4 . ch . 61-180; §18-12. 15 , ch. 68-21 : II. ch. 69-99 ; H IS , 16, 19, 21. 24, 35, ch . ~9-106 ; rentals. 1972 §214.71 ADDENDUM §220.02

(b) The average value of real and tangible without deduction of any costs incurred in carry- personal property shall be determined by averag· ing such accounts; and ing the value at the beginning and the end of the 5. Any other gross income resulting from taxable year or period, unless the department the operation as a financial organization with determines that an averaging of monthly values this state. during the taxable year or period is reasonably (c) In computing the amounts referred to in required to reflect properly the average value of this subsection, any amount received by a the taxpayer's real and tangible personal prop- member of an affiliated group (determined erty. under §1504(a) of the Internal Revenue Code, (2) The payroll factor is a fraction the but without reference to whether any such cor- numerator of which is the total amount paid in poration is an "includable corporation" under this state during the taxable year or period by the §1504(b) of the Internal Revenue Code) from taxpayer for compensation and the denominator another member of such group shall be included of which is the total compensation paid every- only to the extent such amount exceeds ex- where during the taxable year or period. penses of the recipient directly related thereto. Hiatory.-§19. ch. 7 1-359; §2. ch . 7 1-980. (a) The term "compensation" shall mean •Note .-Paragra ph (a), as am ended , e ffective .January I. 1972. wages, salaries, commissions, and any other form of remuneration paid to employees for personal services. (b) Compensation is paid in this state if: 1. The employee's service is performed CHAPTER 220 entirely within the state; or 2. The employee's service is performed both INCOME TAX CODE within and without the state, but the service per- formed without the state is incidental to the PART I TITLE; DECLARATIONS OF employee's service within the state; or INTENT; DEFINITIONS (§§220.01-220.03) 3. Some of the employee's service is per- formed in the state and a . The base of operations or, if there is no PART II TAX IMPOSED; APPORTION- base of operations, the place from which the MENT (§§220.11-220.15) service is directed or controlled is in the state, or b. The base of operations or the place from PART III RETURNS; DECLARATIONS; which the service is directed or controlled is not RECORDS (§§220.21-220.242) in any state in which some part of the service is performed and the employee's residence is in this PART IV PAYMENTS (§§220.31-220.34) state. PART V ACCOUNTING (§§220.41-220.44) (3) The sales factor is a fraction the numera- tor of which is the total sales of the taxpayer in PART VI MISCELLANEOUS (§§220.51- this state during the taxable year or period and 220.53) the denominator of which is the total sales of the taxpayer everywhere during the taxable year or period. PART I "(a) Sales of tangible personal property are in this state if the property is delivered or 1'ITLE; DECLARATIONS OF INTENT; shipped to a purchaser within this state, regard- DEFINITIONS less of the f.o.b. point or other conditions of the sale. (b) Sales of a financial organization, in- 220.01 Short title. cluding, but not limited to, banking and savings 220.02 Legislative intent. institutions, investment companies, real estate 220.03 Definitions. investment trusts, and brokerage companies, shall be in this state if derived from : 220.01 Short title--This chapter shall be 1. Fees, commissions, or other compensa- known and may be cited as the "Florida Income tion for financial services rendered within this Tax Code." state; Hiatory.-§1 , ch. 71-984. 2. Gross profits from trading in stocks, bonds, or other securities managed within this 220.02 Legislative intent.- state; (1) It is the intent of the legislature in 3. Interest and dividends received within enacting this code to impose a tax upon all this state; corporations, organizations, associations, and 4. Interest charged to customers at places other artificial entities which derive from this of business maintained within this state for state or from any other jurisdiction permanent carrying debit balances of margin accounts, and inherent attributes not inherent in or avail- 1973 §220.02 ADDENDUM §220.03

able to natural persons, such as perpetual life, tax purposes after November 2, 1971 shall be transferable ownership represented by shares or subject to taxation in full by this state and certificates, and limited liability for all owners. It shall be taxed in the manner and to the extent is the intent of the legislature to subject such provided in this code. corporations and other entities to taxation here- History.-~!, ch. 71-984. under for the privilege of conducting business, deriving income, or existing within the state. 220.03 Definitions.- This code is not intended to tax, and shall not be (!) SPECIFIC TERMS.-When used in this construed so as to tax, natural persons who code, and when not otherwise distinctly ex- engage in a tra:de or business or profession in this pressed or manifestly incompatible with the 'tate under their own or any fictitious name, intent thereof, the following terms shall have the whether individually as proprietorships or in following meanings: partnerships with others, estates of decedents or (a) "Mfiliated group of corporations" incompetents, or testamentary trusts. However, means two or more corporations which constitute corporations or other taxable entities which are an affiliated group of corporations as defined in or which become partners with one or more section 1504(a) of the Internal Revenue Code. natural persons shall not, merely by reason of (b) "Corporation" includes all domestic being a partner, exclude from their net income corporations; foreign corporations qualified to subject to tax their respective share of partner- do business in this state or actually doing ship net income. This statement of intent shall be business in this state; joint-stock companies; given preeminent consideration in any construc- common law declarations of trust, under chapter tion or interpretation of this code in order to 609; corporations not for profit, under chapter avoid any conflict between this code and the 617; agricultural cooperative marketing as- mandate in art. VII, §5 of the state constitution sociations, under chapter 618; professional that no income tax shall be levied upon natural service corporations, under chapter 621; foreign persons who are residents and citizens of this unincorporated associations, under chapter 622; state. private school corporations, under chapter 623; (2) It is the intent of the legislature that foreign corporations not for profit which are the tax levied by this code shall be construed to carrying on their activities in this state; and all be an excise or privilege tax measured by net other organizations, associations, legal entities, income, and that said tax shall not be deemed or and artificial persons which are created by or construed to be a property tax or a tax on pursuant to the statutes of this state, the United property or a tax measured by the value of States, or any other state, territory, possession, property for any purpose. or jurisdiction. The term "corporation" shall (3) It is the intent of the legislature that not include proprietorships, even if using a ficti- the income tax imposed by this code shall tious name; partnerships of any type, as such; utilize, to the greatest extent possible, concepts state or public fairs or expositions, under of law which have been developed in connection chapters 615 and 616; estates of decedents or with the income tax laws of the United States, incompetents; testamentary trusts; or private in order to: trusts. (a) Minimize the expenses of the depart- (c) "Department" means the department of ment of revenue and difficulties in administering revenue of this state. this code; (d) "Director" means the executive director (b) Minimize the costs and difficulties of of the department of revenue and, when there taxpayer compliance; and has been an appropriate delegation of authority, (c) Maximize, for both revenue and statisti- his delegate. cal purposes, the sharing of information between (e) "Earned," "accrued," "paid," and the state and the federal government. (4) It is the intent of the legislature that "incurred" shall be construed according to the the tax imposed by this code shall be prospective method of accounting upon the basis of which a in effect only. Consistent with this intention and taxpayer's income is computed under this code. the intent expressed in subsection (3), it is hereby (f) "Fiscal year" means an accounting declared to be the intent of the legislature that: period of 12 months or less ending on the last (a) "Income," for purposes of this code, day of any month other than December or, in including gains from the sale, exchange, or other the case of a taxpayer with an annual accounting disposition of property, shall be deemed to be period of 52-53 weeks under subsection 441(f) created for Florida income tax purposes at such of the Internal Revenue Code, the period de- time as said income is realized for federal income termined under that subsection. tax purposes; (g) "Includes" and "including," when used (b) No accretion of value, no accrual of in a definition contained in this code, shall not be gain, and no acquisition of a right to receive or deemed to exclude other things otherwise within accrue income which has occurred or been the meaning of the term defined. generated prior to November 2, 1971 shall be (h) "Internal Revenue Code" means the deemed to be "property," or an interest in United States Internal Revenue Code of 1954 as property, for any purpose under this code; and amended and in effect on November 2, 1971, (c) All income realized for federal income except as provided in subsection (3). 1974 §220.03 ADDENDUM §220.12

(i) "Partnership" includes a syndicate, PART II group, pool, joint venture, or other unin· corporated organization through or by means of TAX IMPOSED, APPORTIONMENT which any business, financial operation, or venture is carried on, including limited partner- 220.11 Tax imposed. ships; and the term "partner" includes a 220.12 Net income defined. member having a capital or a profits interest in a 220.13 Adjusted federal income defined. partnership. 220.131Adjusted federal income; affiliated (j) "Regulations" includes rules promul- groups. gated, and forms prescribed, by the department. 220.14 Exemption. (k) "Returns" includes declarations of 220.15 Apportionment of adjusted federal m- estimated tax required under this code. come. (l) "State," when applied to a jurisdiction 220.11 Tax imposed.- other than Florida, means any state of the ( 1) A tax measured by net income is hereby United States, the District of Columbia, the imposed on every taxpayer for each taxable Commonwealth of Puerto Rico, any territory or year commencing on or after January 1, 1972, possession of the United States, or any political and for each taxable year which begins before subdivision of any of the foregoing. and ends after January 1, 1972, for the privilege (m) "Taxable year" means the calendar or of conducting business, earning or receiving fiscal year upon the basis of which net income income in this state, or being a resident or is computed under this code, including, in the citizen of this state. Such tax shall be in addition case of a return made for a fractional part of a to all other occupation, excise, privilege, and year, the period for which such return is made. property taxes imposed by this state or by any (n) "Taxpayer" means any corporation sub- political subdivision thereof, including any ject to the tax imposed by this code, and shall municipality or other district, jurisdiction, or include all corporations for which a consolidated authority of this state. return is filed under §220.131. (2) The tax imposed by this section shall be (2) DEFINITIONAL RULES.-When used an amount equal to 5 percent of the taxpayer's in this code and neither otherwise distinctly net income for the taxable year. History.-§!, ch. 71-984. expressed nor manifestly incompatible with the intent thereof: (a) The word "corporation" or "taxpayer" 220.12 Net income defined.- (1) For purposes of this code, a taxpayer's shall be deemed to include the words "and its net income for a taxable year which commences successors and assigns" as if these words, or on or after January 1, 1972 shall be that share words of similar import, were expressed; of its adjusted federal income for such year (b) Any term used in any section of this which is apportioned to this state under §220.15, code with respect to the application of, or in less the exemption allowed by §220.14. connection with, the provisions of any other (2) For purposes of this code, a taxpayer's section of this code shall have the same meaning net income for a taxable year which begins as in such other section; and before and ends after January 1, 1972 shall be (c) Any term used in this code shall have the that amount which bears the same ratio to the same meaning as when used in a comparable taxpayer's share of adjusted federal income context in the Internal Revenue Code and other which is apportioned to this state for the entire statutes of the United States relating to federal year as the n urn her of days in such year after income taxes, as such code and statutes are in December 31, 1971 bears to the total number of effect on Novem her 2, 1971. However, if sub- days in such year, less a like proportion of the section (3) is implemented, the meaning of any exemption allowed by §220.14, unless the tax- term shall be taken at the time the term is payer elects to compute net income for such applied under this code. taxable year in the manner and under the (3) FUTURE FEDERAL AMENDMENTS.- conditions provided in subsection (3). On or. after January 1, 1972, when expressly (3)(a) If the taxpayer so elects, in the case authonzed by law, any amendment to the Inter- of a taxable year beginning before and ending nal Revenue Code shall be given effect under after January 1, 1972, there shall be taken into this code in such manner and for such periods account in computing adjusted federal income, as are prescribed in the Internal Revenue Code before apportionment, only those items earned, to the same extent as if such amendment had received, paid, incurred, or accrued after been adopted by the legislature of this state. December 31, 1971, and the exemption pro- However, any such amendment shall have effect vided by §220.14 shall be limited to that amount under this code only to the extent that the which bears the same ratio to the total exemption amended provision of the Internal Revenue Code allowable under such section, determined with- shall be taken into account in the computation out regard to this subsection, as the number of of net income subject to tax hereunder. days in such year after December 31, 1971 bears History.-~!, <·h. 71-984. to the total number of days in such year. 1975 §220.12 ADDENDUM §220.13

(b) The election provided by this subsection operating losses, net capital losses, and excess shall be made not later than the due date, in- contribution deductions under sections 170(d)(2) duding any extensions thereof, for filing tax- and 404 of the Internal Revenue Code which are payer's return for the taxable year, in such carried forward from taxable years ending prior manner as the department may by regulation to January 1, 1972; and prescribe. However, no such election shaU be b. The net operating loss, net capital loss, valid unless the director has given his written and excess contributions deductions under approval at the time of such filing or unless the sections 170(d)(2) and 404 of the Internal director fails to object to said election in writing Revenue Code, respectively, allowable for any within 30 days after such filing. taxable year beginning before and ending after (c) The method of computing adjusted January 1, 1972 shall be limited to an amount federal income under this subsection shall be which bears the same ratio to the taxpayer's considered extraordinary and shall only be net operating loss, net capital loss, and excess allowed by the director in special situations contributions deductions under sections 170(d) where the taxpayer has demonstrated that the (2) and 404 of the Internal Revenue Code, method for determining net income which is respectively, for the entire taxable year as the prescribed in subsection (2) will not reasonably number of days in such year after December 31, reflect that portion of the taxpayer's income 1971 bears to the total number of days in such attributable to the period after December 31, year, unless the taxpayer elects to account 1971. separately for income under subsection 220.12 HiAtory.-§1. ch. 71·984. (3), in which case the net operating loss, net capital loss, and excess contributions 220.13 Adjusted federal income defined.- deductions under sections 170(d)(2) and 404 of ( 1) "Adjusted federal income" shall mean the Internal Revenue Code, respectively, an amount equal to the taxpayer's taxable allowable for such year shall be determined income as defined in subsection (2), or said on the basis of the items actually earned, taxable income of more than one taxpayer as received, paid, incurred, or accrued after provided in §220.131, for the taxable year, December 31, 1971; and adjusted as follows: c. A net operating loss and a capital loss (a) Additions.-There shall be added to such shail never be carried back as a deduction to a taxable income: prior taxable year, but all deductions attributable 1. The amount of income tax paid or to such losses shall be deemed net operating accrued as a liability to this state under this loss carryovers and capital loss carryovers, code which is deductible from gross income in respectively, and treated in the same manner, the computation of taxable income for the tax- to the same extent, and for the same time able year; periods as are prescribed for such carryovers in 2. The amount of interest which is excluded section 172 and section 1212, respectively, of the from taxable income under paragraph 103(a)(1) Internal Revenue Code. of the Internal Revenue Code and which is not 2. There shall be subtracted from such derived from obligations of the state or any of its taxable income any amount included therein: political subdivisions; a. Under section 78 or section 951 of the 3. In the case of a regulated investment Internal Revenue Code; company or real estate investment trust, an b. Which was derived from sales outside amount equal to the excess of the net long-term the United States, and from sources outside the capital gain for the taxable year over the amount United States as interest, as a royalty, or as of the capital gain dividends attributable to the compensation for technical or other services; and taxable year. c. Which was received as a dividend from a (b) Subtractions.- corporation which neither transacts any_ sub- !. In computing the net operating loss stantial portion of its business in the United deduction allowable for federal income tax States nor regularly maintains any substantial purposes under section 172 of the Internal portion of its assets within the United States. Revenue Code for the taxable year, the net capital loss allowable for federal income tax However, as to any amount subtracted under purposes under section 1212 of the Internal this subparagraph, there shall be added to such Revenue Code for the taxable year, the excess taxable income all expenses deducted on the charitable contribution deduction allowable for taxpayer's return for the taxable year which are federal income tax purposes under section 170 attributable, directly or indirectly, to such (d)(2) of the Internal Revenue Code for the subtracted amount. taxable year, and the excess contributions 3. There shall be subtracted from such deductions allowable for federal income tax taxable income all amounts included therein purposes under section 404 of the Internal which are derived from stocks, bonds, treasury Revenue Code for the taxable year, there shall notes, and other obligations of the United States. be subtracted from taxable income, in order to (c) Installment sales.- arrive at adjusted federal income, such amounts 1. Unless there has been an election under as reflect the following limitations: subparagraph 2., any taxpayer which returns any a. No deduction shall be allowed for net portion of its income for federal income tax 1976 §220.13 ADDENDUM §220.13

purposes under section 453 of the Internal . eluding collection costs and the expenses attri- Revenue Code, whether or not as a dealer, shall butable to servicing sales contracts. file its return under this code, and shall compute 5. The amount to be included in taxable its adjusted taxable income, including income income under subparagraph 4. shall be limited to derived from transactions treated for federal tax the sum of the following amounts: purposes as installment sales, in accordance a. An amount equal to 100 percent of the with the regular method by which the taxpayer income derived from installment sale transac- accounts, under section 446(c) of the Interna1 tions consummated on or after January 1, 1972; Revenue Code, for transactions which are not b. An amount equal to 70 percent of the installment sales. In preparing its return under income returned for federal income tax purposes this code, the taxpayer shall adjust taxable in the taxable year which was derived from income, as defined m subsection (2), by exclud- installment sale transactions consummated prior ing therefrom all installment sale income re- to January 1, 1972 and after December 31, 1970; ported in the taxable year with respect to c. An amount equal to 50 percent of the income realized from installment sales prior to income returned for federal income tax purposes January 1, 1972 and by including therein the full in the taxable year which was derived from amount of all income realized from installment installment sale transactions consummated sales, under an accrual method of accounting, prior to January 1, 1971 and after December 31, on or after said date. However, for a taxable 1968; year which begins before and ends after January d. An amount equal to 25 percent of the 1, 1972, the ratio set forth in subsection 220.12 income returned for federal income tax purposes (2) shall not be applied to the taxpayer's in the taxable year which was derived from apportioned share of installment sale income in installment sale transactions consummated prior computing net income. to January 1, 1969 and after December 31, 1966; 2. Arly taxpayer which has elected for and federal income tax purposes to report any portion e. An amount equal to 10 percent of the of its income on the installment basis under income returned for federal income tax purposes section 453 of the Internal Revenue Code may in the taxable year which was derived from elect so to return income from installment sales installment sale transactions consummated prior for purposes of this code. However, the election to January 1, 1967. provided by this subparagraph shall only be 6. The department may by regulation allowed if: prescribe the methods or procedures for com- a. The election is made not later than the puting the amounts included and excluded from due date, including any extensions thereof for taxable income under subparagraphs 4. and 5. filing the taxpayer's return under this cod~, in (2) For purposes of this section, a taxyayer's such manner as the department may prescribe; taxable income for the taxable year shal mean and taxable income as defined in section 63 of the b. The taxpayer consents in writing, at the Internal Revenue Code and properly reportable time of its election, to the filing of its return for federal income tax purposes for the taxable without the adjustments to taxable income which year, but subject to the limitations set forth in are described in subparagraph 1. paragraph ( 1)(b) with respect to the deductions 3. If the taxpayer is a dealer or otherwise provided by sections 172 (relating to net operat- returns a portion of its income under section 453 ing losses), 170(d)(2) (relating to excess of the Internal Revenue Code, an election under charitable contributions), 404(a)(1)(D) (relating subparagraph 2. must be made for the tax- to excess pension trust contributions), 404(a)(3) payer's first taxable year under this code in (A) and (B) (to the extent relating to excess which a portion of its income is so returned stock bonus and profit-sharing trust contribu- for federal tax purposes, and said election shall tions), 404(d) (relating to excess contributions apply to all subsequent taxable years for which under the 1939 code) and 1212 (relating to installment sale treatment is elected for federal capital losses) of the Internal Revenue Code, income tax purposes, unless the department except that, subject to the same limitations: consents in writing to the revocation of such (a) "Taxable income," in the case of a life election prior to the first taxable year for which insurance company subject to the tax imposed such revocation would apply. by section 802 of the Internal Revenue Code, 4. If an election is made under subpara- shall mean life insurance company taxable in- graph 2., then, in lieu of returning the entire come; however, the amount of said income to be amount of installment sale income returned for taken into account for purposes of this code federal income tax purposes, the taxpayer may shall never exceed, cumulatively, the excess of include in income for each taxable year under amounts determined under paragraph 802(b)(3) this code only the amount of income which is of the Internal Revenue Code as of the close of specified in subparagraph 5., in which event the the taxpayer's taxable year over the amount taxpayer shall also add to taxable income, as determined under said paragraph as of Decem- defined in subsection (2), all expenses deducted ber 31, 1971; on its federal return for the taxable year with (b) "Taxable income," in the case of a respect to installment sale income excluded from mutual insurance company subject to the tax Florida net income under this provision, in· imposed by section 821(a) or (c) of the Internal 1977 §220.13 ADDENDUM §220.131

Revenue Code, shall mean mutual insurance tion subject to tax under this code which is the company taxable income or taxable investment parent company of an affiliated group of corpo- income, as the case may be; rations may elect, not later than the due date for filing its return for the taxable year, including (c) "Taxable income," in the case of an any extensions thereof, to consolidate its taxable insurance company subject to the tax imposed by income with that of all other members of the section 831(a) of the Internal Revenue Code, group subject to tax under this code and to shall mean insurance company taxable income; return such consolidated taxable income here- under, in which case all such other members (d) "Taxable income," in the case of a must consent thereto in such manner as the regulated investment company subject to the tax department may by regulation prescribe. Any imposed by section 852 of the Internal Revenue Florida parent company of an affiliated group Code, shall mean investment company taxable of corporations may elect to consolidate its income; taxable income with all other members of the affiliated group, even though some of its mem· (e) "Taxable income," in the case of a real hers are not subject to tax under this code, estate investment trust subject to the tax provided: imposed by section 857 of the Internal Revenue (a) Each member of the group consents to Code, shall mean real estate investment trust such filing by specific written authorization taxable income; at the time the consolidated return is filed ; (f) "Taxable income," in the case of a (b) The affiliated group so filing under corporation which is a member of an affiliated this code has filed a consolidated return for group of corporations filing a consolidated federal income tax purposes for the same income tax return for the taxable year for taxable year; and federal income tax purposes, shall mean taxable (c) The affiliated group so filing under this income of such corporation for federal income code is composed of the identical component tax purposes as if such corporation had filed a members as have consolidated their taxable separate federal income tax return for the tax· incomes in said federal return. able year and each preceding tax~~le year for (2) Subject to subsection (5), the director which it was a member of an aff1hated group, may require a consolidated return for those unless a consolidated return for the taxpayer and members of an affiliated group of corpora- others is required or elected under §220.131 ; tions which are subject to tax and which would (g) "Taxable income," in the case of a be eligible to elect to consolidate their cooperative corporation or association, shall incomes under subsection (1), if the filing of mean the taxable income of such organization separate returns for such corporations would improperly reflect the taxable incomes of said determined in accordance with the provisions of corporations or of said group. section 1381 through 1398 of the Internal (3) The filing of a consolidated return for Revenue Code; any taxable year shall require the filing of (h) "Taxable income," in the case of an consolidated returns for all subsequent taxable organization which is exempt from the federal years so long as the filing taxpayers remain income tax by reason of section 501(a) of the members of the affiliated group or, in the case Internal Revenue Code, shall mean its un· of a group having component members not sub- related business taxable income as determined ject to tax under this code, so long as a con- under section 512 of the Internal Revenue Code; solidated return is filed by such group for and federal income tax purposes, unless the director consents to the filing of separate returns. (i) "Taxable income," in the case of a (4) The computation of consolidated tax- corporation for which there is in effect for the able income for the members of an affiliated taxable year an election under section 1372 of the group of corporations subject to tax hereunder Internal Revenue Code, shall mean the amount shall be made in the same manner and under of income subject to tax at the corporate the same procedures, including all inter- level under paragraph 1372(b)(1) of the Internal company adjustments and eliminations, as are Revenue Code for each taxable year com- required for consolidating the incomes of mencing prior to July 1, 1973, and taxable affiliated corporations for the taxable year for income for such a corporation for each taxable federal income tax purposes in accordance year commencing on or after July 1, 1973 shall with section 1502 of the Internal Revenue Code, mean taxable income as defined in section 63 and the amount shown as consolidated taxable ofthe Internal Revenue Code, determined without income shall be the amount subject to tax under regard to the provisions of subchapter S of this code. said code. Hiatory.-§1. ch . 71 -984. (5) No taxpayer may apportion adjusted federal income under §214.72 as a member of an 220.131 Adjusted federal income; affiliated affiliated group which files a consolidated groups.- return under this section on the basis of appor- (1) Subject to subsection (5), any corpora- tionment factors described in §214.71, and no 1978 §220.131 ADDENDUM §220.15

taxpayer may apportion under §214.71 as a (2) The term "financial organization" in member of an affiliated group which files a paragraph 214. 71(3)(b) shall include any bank, consolidated return on the basis of an appor- trust company, savings bank, industrial bank, tionment factor described in §214.72, but no tax- land bank, safe deposit company, private payer shall be barred from filing as a member of banker, savings and loan association, credit an affiliated group if it apportions adjusted union, cooperative bank, small loan company, federal income in the same manner as the parent sales finance company, or investment company; company and all other filing members of the and group. (3) The term "everywhere" in part IV of History.-§!. ch. 71·984. chapter 214, which is used in the computation of apportionment factor denominators, shall mean 220.14 Exemption.- "in all other states of the United States, (!) In computing a taxpayer's liability for the District of Columbia, the Commonwealth of tax under this code, there shall be exempt from Puerto Rico, any territory or possession of the tax $5,000 of net income as defined in the United States, or any political subdivision §220.12 or such lesser amount as will without of the foregoing," and increasing the taxpayer's federal in~ome tax (4) In lieu of the equally weighted three liability, provide the state with an amount factor apportionment fraction based on property, under this code which is equal to the maximum payroll, and sales which is described in federal income tax credit which may be avail- ~214. 71, there shall be used for purposes of the able from time to time under federal law. tax imposed by this code an apportionment frac- (2) In the case of a taxable year for a tion composed of a sales factor representing 50 period of less than 12 months, the exemption percent of the fraction, a property factor allowed by this section shall be prorated on the representing 25 percent of this fraction, and a basis of the number of days in such year to 365. payroll factor representing 25 percent of the (3) Only one exemption shall be allowed fraction. However, upon application in ac- to taxpayers filing a consolidated return under cordance with paragraph (a), any taxpayer shall this code. be entitled to a refund of tax, in an amount (4) Notwithstanding any other provision determined under paragraph (b), if it can es- of this code, not more than one exemption tablish that the aggregate amount of its net under this section shall be allowed to the income subject to tax under this code and in all Florida members of a controlled group of other states for the taxable year exceeds 100 corporations, as defined in section 1563 of the percent of the taxpayer's taxable income, as Internal Revenue Code with respect to taxable determined for federal income tax purposes, years ending on or after December 31, 1970, for the taxable year. filing separate returns under this code. The (a) Any taxpayer eligible for a refund under exemption described in this section shall be this subsection shall make application therefor in divided equally among such Florida members of accordance with procedures set forth in part I of the group, unless all of such members consent, at chapter 214. All applications for refund under such time and in such manner as the department this subsection shall be accompanied by a copy of shall by regulation prescribe, to an apportion· the taxpayer's federal income tax return for the ment plan providing for an unequal allocation taxable year, copies of every return filed by the of such exemption. taxpayer in the states in which it has conducted History.-§! , ch. 7 1·984. business for the taxable year, and verification in the form of cancelled checks or other receipts of the taxpayer's payments of the amounts shown 220.15 Apportionment of adjusted federal to be due on the several returns filed with the income.-Adjusted federal income as defined in refund application. §220.13 shall be apportioned to this state in accordance with part IV of chapter 214, and for (b) The refund to which any taxpayer shall the purpose of applying said part to this code: be entitled under this subsection shall be (1) The term "s ales" in paragraph 214.71 equal to 5 percent of the lesser of: (3Xa) shall mea n all gross receipts of the 1. The excess of the amount subject to tax taxpayer except interest, dividends rents for the taxable year under this code over the royalties, and gross receipts from the sale: amount which would have been subject to tax exchange, maturity, redemption, or other dis- if the taxpayer had computed net income for position of securities; except that: purposes of this code on the basis of the (a) Rental income shall be included in the apportionment fraction described in §214.71; or term "sales " whenever a significant portion of 2. The excess of the aggregate amount of the taxpa yer's business consists of leasing or net income subject to tax in Florida and in all renting ta ngible pers onal property; other sta tes for the taxable year over the amount (b) Royalty income s h a ll be included in the of federal taxable income for the taxa ble year. term "sales" whenever a significant portion of (c) For purposes of tllis subsection, the the taxpayer's business consists of dealing in or terms "net income subject to tax" and "amount with the production, exploration, or development subject to tax" shall mean the a mount against of minerals; and which a rate or rates are applied in determining 1979 §220.15 ADDENDUM §220.23

the taxpayer's dollar liability for tax m any made by a fiduciary under subsection 220.22(3), jurisdiction. by the fiduciary. The fact that an officer or History.-§ l. ch. 71·984. fiduciary has signed a return or notice shall be prima facie evidence that the individual was PART III authorized to sign such document on behalf of the taxpayer. RETURNS, DECLARATIONS, RECORDS (2) A return or notice for a partnership shall be signed by any one of the general partners, and 220.21 Returns and records; regulations. the fact that a partner has signed a return or 220.22 Returns; filing requirement. notice shall be prima facie evidence that such 220.221 Returns; signing and verification. partner was authorized to sign such document 220.222 Returns; time and place for filing. on behalf of the partnership. 220.23 Federal returns. (3) Each return or notice required to be 220.24 Declaration of estimated tax . filed under this code shall be verified by a 220.241 Declaration; time for filing . written declaration that it is made under the 220.242 Declaration as return. penalties of perjury, and if prepared by someone other than the taxpayer the return shall also 220.21 Returns and recordsi regulations.- contain a declaration by the preparer that it was Every taxpayer liable for the tax Imposed by this prepared on the basis of all information of which code shall keep such records, render such the preparer had knowledge. statements, make such returns and notices, and History.-§ 1, ch. 71·984. comply with such rules and regulations, as the department may from time to time prescribe. The 220.222 Returns; time and place for filing.- director may require any taxpayer or class of (1) Returns required by this code shall be taxpayers, by notice or by regulation , to make filed with the office of the department in Leon such returns and notices, render such statements, County or at such other place as the department and keep such records as the director deems may by regulation prescribe. All returns shall be necessary to determine whether such taxpayer or filed on or before the first day of the fourth taxpayers are liable for tax under this code. month following the close of the taxable year, History.-§1, ch . 71·984. unless under subsection (2) one or more exten- sions of time, not to exceed 6 months in the 220.22 Returns; filing requirement.- aggregate, are granted for such filing . (!) A return with respect to the tax imposed (2)(a) When a taxpayer has been granted by this code shall be made by every taxpayer an extension or extensions of time within which for each taxable year in which such taxpayer to file its federal income tax return for any either is liable for tax under this code or is taxable year, and if the requirements of §220.32 required to make a federal income tax return, are met, the filing of a copy of such extension regardless of whether such taxpayer is liable for or extensions with the department shall auto- tax under this code. matically extend the due date of the return (2) Every Florida partnership having any required under this code until 15 days after the partner subject to tax under this code, shall expiration of the federal extension or until the make an information return setting forth: expiration of 6 months from the original due (a) All items of income, gain, loss, and date, whichever first occurs. deduction; (b) The department may grant an extension (b) The names and addresses of all partners or extensions of time for the filing of any return subject to tax hereunder who would be entitled required under this code upon receiving a prior to share in the net income of the partnership if written request therefor if good cause for an distributed; extension is shown. However, the aggregate (c) The amount and proportion of the dis- extensions of time under paragraphs (a) and (b) tributive share of each partner-taxpayer; and shall not exceed 6 months. No extension granted (d) Such other pertinent information as the under this paragraph shall be valid unless the department may by form or regulation prescribe. taxpayer complies with the requirements of (3) Whenever a receiver, trustee in bank- §220.32 ruptcy, or assignee, by order of raw or otherwise, History.- § 1, ch . 71·984. has possession of or holds title to all or sub- stantially all of the property or business of a 220.23 Federal returns.- taxpayer, whether or not such property or (1) Any taxpayer required to make a return business is being operated, such receiver, for a taxable year under this code may, at any trustee, or assignee shall make the returns and time that a deficiency could be assessed or a notices required of such taxpayer. refund claimed under this code in respect of any Hiotory.-§1, ch . 71·984. item reported or properly reportable on such re- turn or any amendment thereof, be required to 220.221 Returns; signing and verification.- furnish to the department a true and correct copy (!) A return or notice required of a taxpayer of any return which may pertain to such item and shall be signed by an officer duly authorized so to which was filed by such taxpayer under the act or, in the case of a return or notice provisions of the Internal Revenue Code. 1980 §220.23 ADDENDUM §220.242

(2) In the event the taxable income, any part I of chapter 214. However, the amount item of income or deduction , or the income tax recoverable pursuant to such a claim shall be liability reported in a federa l income tax return limited to the amount of any overpayment of any taxpayer for any taxable year is adjusted resulting under this code from recomputation of by amendment of such return or as a result of any the taxpayer's income for the taxable year after other recomputation or redetermina tion of giving effect only to the item or items reflected federal taxable income or loss, if such adjust- in the adjustment required to be reported. ment would affect any item or items entering History.- § !, ch. 71 ·984. into the computation of such taxpayer's net 220.24 Declaration of estimated tax.- income subject to tax for any taxable year under this code, the following special rules shall apply : (1) Every taxpayer shall make a declaration (a) The taxpayer shall notify the depart· of estimated tax for the taxable year, in such ment of such adjustment by filing either an form as the department shall prescribe, if the amended return or such other report as the amount payable as estimated tax can reasonably department may by regulation prescribe, which be expected to be more than $2,500. The term return or report: " estimated tax" shall mean the amount which 1. Shall show the taxpayer's name, address , the taxpayer estimates to be his tax under this and employer identification number; the adjust- code for the taxable year or, in the case of a ments; the taxpayer's revised net income subject taxable year of Jess than 12 months, an amount to tax and revised tax liability under this code; of tax determined in accordance with regulations and such other information as the department prescribed by the department. may by regulation prescribe; (2) A taxpayer may amend a declaration, 2. Shall be signed by a person required under regulations prescribed by the department. to sign the original return or by a duly autho- His tory.-§ I. ch . 7 H lR4. rized representative; and 3. Shall be filed not later than 60 days 220.241 Declaration; time for filing.- after such adjustment has been agreed to or A declaration of estimated tax under this code finally determined for federal income tax shall be filed on or before the first day of the purposes, or after any federal income tax fifth month of each taxable year, except that if deficiency or refund, abatement, or credit the minimum tax requirement of subsection resulting therefrom has been assessed , paid, or 220.24(1) is first met: collected, whichever shall first occur. (1) After the third month and before the (b) If the amended return or other report sixth month of the taxable year, the declaration filed with the department concedes the accuracy shall be filed on or before the first day of the of a federal change or correction, any deficiency seventh month; in tax under this code resulting therefrom shall (2) After the fifth month and before the be deemed assessed on the date of filing such ninth month of the taxable year, the declaration amended return or report, and such assessment shall be filed on or before the first day of the shall be timely, notwithstanding any other tenth month; or provision contained in part I of chapter 214 . (3) After the eighth month and before the (c) In any case where notification of an twelfth month of the taxable year, the declara- adjustment is required under paragraph (a), tion shall be filed for the taxable year on or then notwithstanding any other provision before the first da y of the succeeding taxable contained in part I of chapter 214 : year. 1. A notice of deficiency may be issued at History.- § I. ch . 7 1·984. any time within 2 years after the date such notification is given; or 220.242 Declaration as return.-All of the 2. If a taxpayer either fails to notify the provisions of this part and of §214 .21, relating to department or fails to report a change or confidentiality, shall ~e applicable with respe~t correction which is treated in the same manner as to declarations of estimated tax unless mam- if it were a deficiency for federal income tax festly inconsistent therewith. However, the purposes, a notice of deficiency may be issued declaration required of a preparer other than the at any time; taxpayer under subsection (3) of §220.22 shall 3. In either case, the amount of any pro- not be required with respect to declarations of posed assessment set forth in such notice shall estimated tax. be limited to the amount of any deficiency His tory .- § !. ch . 7 1·984. resulting under this code from recomputation of the taxpayer's income for the taxable year after giving effect only to the item or items PART IV reflected in the adjustment. (d) In any case when notification of an PAYMENTS adjustment is required by paragraph (a), a claim for refund may be filed within 2 years 220.31 Payments; due date. after the date on which such notification was 220. 32 Payments of tentative tax. due, regardless of whether such notice was given, 220.33 Payments of estimated tax. notwithstanding any other provision contained in 220. 34 Special rules relating to estimated tax. 1981 §220.31 ADDENDUM §220.34

220.31 Payments; due date.- paid in three equal installments. The first in- (1) Every taxpayer required to file a return stallment shall be paid at the time of required under this code or a notification under subsection filing of the declaration; the second installment 220.23(2) shall, without assessment, notice, or shall be paid on or before the first day of the demand, pay any tax due thereon to the depart- tenth month of the taxable year; and the third ment at the place fixed for filing, including installment shall be paid on or before the first payment to such depository institutions through- day of the next taxable year. out the state as the department may by regula- (3) If the declaration is required to be filed tion designate, on or before the date fixed for on or before the first day of the tenth month of filing such return, determined without regard to the taxable year, the estimated tax shall be paid any extension of time for filing the return, or in two equal installments: at the time of required notification, pursuant to regulations prescribed filing of the declaration for such taxable year by the department. and on or before the first day of the next taxable (2) Except as to estimated tax payments year, respectively. under §220.33, the payment required under this ( 4) If the declaration is required to be filed section shall be the balance of tax remaining on or before the first day of the succeeding due after giving effect to the following: taxable year, the estimated tax shall be paid in (a) Any amount of tentative tax or esti- full at the time of such required filing. mated tax paid by a taxpayer for a taxable (5) If the declaration is filed after the time year pursuant to §220.32 or §220.33 shall be prescribed in §220.241 due to the grant of an deemed to have been paid on account of the tax extension of time for filing, subsections (1) imposed by this code for such taxable year; and through (4) of this section shall not apply, and (b) Any amount of a tax overpayment which there shall be paid at the time of such filing is credited against the taxpayer's liability for the all installments of estimated tax which would taxable year under §214.13 shall be deemed to have been payable on or before such time if have been paid on account of the tax imposed by the declaration had been filed within the time this code for such taxable year. prescribed in §220.241 and without regard to the Histnry.-§1, ch. 71-984. extension, and the remaining installments shall be paid at the time at which, and in the amounts 220.32 Payments of tentative tax.- in which, they wou]d have been payable if the (1) ]n connection with any extension of the declaration had been so filed. time for filing a return under subsection 220.222 (6) If an amended declaration is filed, the (2), the taxpayer shall file a tentative tax return remaining installments, if any, shall be ratably and pay, on or before the date prescribed by increased or decreased, as the case may be, to law for the filing of such return, determined reflect the increase or decrease in the estimated without regard to any extensions of time for such tax occasioned by such amendment. filing, an amount estimated to be the balance of (7) The application of this section to taxable its proper tax for the taxable year after giving years of less than 12 months shall be in ac- effect to any estimated tax payments under cordance with regulations prescribed by the §220.33 and any tax credit under §214.13. department. (2) The department shall by regulation pre- Histnry.-~1. ch. 71-9B4. scribe the manner and form for filing tentative returns. 220.34 Special rules relating to estimated (3) Interest on any amount of tax due and tax.- unpaid during the period of any extension shall (1) Any amount paid as estimated tax shall be payable as provided in §214.43. be deemed assessed upon the due date for the History.-§!, ch. 71 -984. taxpayer's return for the taxable year, de- termined without regard to any extensions of 220.33 Payments of estimated tax.-A time for filing such return. taxpayer required to file a declaration of esti- (2) No interest or penalty shall be due or mated tax pursuant to §220.24 shall pay such paid with respect to a failure to pay estimated estimated tax as follows: taxes except the following: (1) If the declaration is required to be filed (a) Except as provided in paragraph (d), the on or before the first day of the fifth month of taxpayer shall be liable for interest at the rate the taxable year, the estimated tax shall be paid of 6 percent per year and for a penalty in an in four equal installments. The first installment amount determined at the rate of 10 percent shall be paid at the time of the required per year upon the amount of any underpayment filing of Hie declaration; the second and third of estimated tax determined under this sub- installments shall be paid on or before the first section. day of the seventh and tenth months of the tax- (b) For purposes of this subsection, the able year, respectively; and the fourth install- amount of any underpayment of estimated tax ment shall be paid on or before the first day of shall be the excess of: the next taxable year. 1. The amount of the installment which (2) If the declaration is required to be filed would be required to be paid if the estimated on or before the first day of the seventh month tax were equal to 80 percent of the tax shown of the taxable year, the estimated tax shall be on the return for the taxable year or, if no 1982 §220.34 ADDENDUM §220.43

return were filed, 80 percent of the tax for such 220.42 Methods of accounting. year, over 220.43 Reference to federal determinations. _2. The amount, if any, of the installment 220.44 Adjustments. paid on or before the last date prescribed for payment. (c) _The period of the underpayment for 220.41 Taxable year.- whiCh mterest and penalties shall apply shall _(1) For purposes of the tax imposed by commence on the date the installment was re- this code and the returns required to be filed. quired to be paid, determined without regard to the taxable year of a taxpayer shall be the sam~ any extensions of time, and shall terminate on ~s the taxable year of such taxpayer for federal the earlier of the following dates: mcome tax purposes. 1. The first day of the fourth month fol- (2) If the taxable year of a taxpayer is lowing the close of the taxable year; or changed for federal income tax purposes, the 2. With respect to any portion of the under- taxable year of such taxpayer for purposes of payment, the date on which such portion is paid. this code shall be similarly changed. (3) Notwithstanding the provisions of sub- Fo~ purposes of this paragraph, a payment of sections (1) and (2), if the department terminates estunated tax on any installment date shall be t~e. taxable year of a taxpayer under the pro- considered a payment of any previous underpay- VISIOns of chapter 214 relating to jeopardy ment only to the extent such payment exceeds assessments, the tax shall be computed for the the amount of the installment determined under period determined by such action. History.-~!. ch. 7I -9R4. subparagraph (b)l. for such installment date. (d) No penalty or interest for underpay- ment of any installment of estimated tax shall be 220.42 Methods of accounting.- imposed if the total amount of all such payments (!) For purposes of this code, a taxpayer's made on or before the last date prescribed for method of accounting shall be the same as such the payment of such installment equals or ex- taxpayer's method of accounting for federal in- ceeds the amount which would have been re- come tax purposes. If no method of accounting quired to be paid on or before such date if the has been regularly used by a taxpayer net in- estimated tax were the lesser of: 1. An amount equal to the tax computed at come for purposes of this code shall be c~mputed the rates applicable to the taxable year but by such method as in the opinion of the depart- otherwise on the basis of the facts shown o~ the ment fairly reflects income. return for, and the law applicable to the pre- (2) If a taxpayer's method of accounting is ceding taxable year· or ' changed for federal income tax purposes the 2. An amount ~qual to 80 percent of the tax taxpayer's method of accounting for purpos'es of finally due for the taxable year; or this code shall be similarly changed. History.-~!. ch. 71 -91!4. 3. An amount equal to the tax shown on the ~axpayer's retun; forth~ preceding taxable year, If a return showmg a liability for tax was filed 220.43 Reference to federal determina- by the taxpayer for the preceding taxable year tions.- and such preceding year was a taxable year of 12 (1) To the extent not inconsistent with the months. provisions of this code or forms or regulations (e) For purposes of paragraphs (b) and (d) prescribed by the department, each taxpayer the term "tax" shall mean the excess of the ta~ making a return under this code shall take into imposed by this code over all amounts properly account the items of income, deduction, and credited against such tax for the taxable year. exclusion on such return in the same manner and (f) The application of this subsection to amounts as reflected in such taxpayer's federal taxable years of less than 12 months shall be in income tax return for the same taxable year. accordance with regulations prescribed by the (2) A final determination under the Inter- department. nal Revenue Code adjusting any item or items of (g) The provisions of this subsection shall income, deduction, or exclusion for any taxable not apply with respect to any taxable year year shall be prima facie correct for purposes of beginning before January 1, 1972. this code to the extent such item or items enter (3) The department may provide by regula- into the determination of net income under this tion for a credit against estimated taxes for any code. taxable year of any amount determined by the (3) If there has been implementing legisla- taxpayer or by the department to be an over- tion under subsection 220.03(3), and to the extent payment of the tax imposed by this code for a required in regulations prescribed by the depart- preceding taxable year. ment, any taxpayer making a return under this History.-§! , ch . 7 I- H84. code ma,Y be required to indicate the item or items of mcome, deduction, and exclusion which PART V would enter into the determination of income if this code were amended to incorporate the Inter- ACCOUNTING nal Revenue Code as amended and in effect for such taxable year. 220.41 Taxable year. History.-~!. ch. 71-98-1.

1983 §220.44 ADDENDUM §316.006

220.44 Adjustments.-If it appears to the CHAPTER 253 director that any agreement, understanding, or arrangement exists between any taxpayers, INTERNAL IMPROVEMENT TRUST FUND or between any taxpayer and any other person, which causes any taxpayer's net income subject to tax to be reflected improperly or inaccurately, 253.015 Limitation on expenditure of trust fund. the director may adjust any item or items of income, deduction, or exclusion, or any factor. 253.015 Limitation on expenditure of trust taken into account in apportioning income to fund.-Other provisions of law to the contrary this state, to the extent necessary clearly to notwithstanding, effective January 1, 1972 and reflect the net income of such taxpayer. thereafter, all revenues and receipts accruing History.-§ I, ch. 71-98~ . to the board of trustees for the benefit of the internal improvement trust fund shall be PART VI available for appropriation by the legislature solely and exclusively for the acquisition of land MISCELLANEOUS and the incidental expenses related thereto. Effective January 1, 1972, the uncommitted 220.51 Promulgation of rules and regulations. fund balance of the internal improvement trust 220.52 Arrangements and captions. fund as of that date shall be expended or loaned 220.53 Adoption of chapter 214. only upon specific legislative appropriation or authorization. History.-§2, ch. 71 -98 1.

220.51 Promulgation of rules and regula- tions.-ln accordance with the Administrative Procedure Act, chapter 120, the department is authorized to make, promulgate, and enforce such reasonable rules and regulations, and to CHAPTER 316 prescribe such forms relating to the administra- tion and enforcement of the provisions of this STATE UNIFORM TRAFFIC CONTROL code, as it may deem appropriate, including: (1) Rules for initial implementation of this 316.006 Jurisdiction. code and for taxpayers' transitional taxable 316.007 Provisions uniform throughtout state. years commencing before and ending after 316.008 Powers of local authorities. January 1, 1972; (2) Rules or regulations to clarify whether certain groups, organizations, or associations •316.006 Jurisdiction.-Jurisdiction to con- formed under the laws of this state or any other trol traffic is vested as follows: state, country, or jurisdiction shall be deemed (1) STATE.-The department of transporta- " taxpayers" for the purposes of this code, in tion shall have all original jurisdiction over all accordance with the legislative declarations of state roads throughout this state, including those intent in §220.02; and within the grounds of all state institutions and (3) Regulations relating to consolidated the boundaries of all dedicated state parks, and reporting for affiliated groups of corporations, may place and maintain such traffic control in order to provide for an equitable and just devices which conform to its m a nual a nd speci- administration of this code with respect to multi· fications upon all such highways as it shall deem corporate taxpayers. necessary to indicate and to carry out the provi- History .-§ I. ch. 7!-984. sions of this chapter or to regulate, warn, or guide traffic. 220.52 Arrangement and captions.-No (2) MUNICIPALITIES.-Chartered muni- inference, implication, or presumption of legis- cipalities shall have original jurisdiction over all lative construction shall be drawn or made by streets and highways located within their bound- reason of the location or grouping of any parti- aries, except state roads, and may place and cular sections or provisions of this code, nor shall maintain such traffic control devices which any caption be giVen any legal effect. conform to the manual and specifications of History.-§! , ch. 7 1·984. the department of transportation upon all streets and highways under their original jurisdiction as they shall deem necessary to indicate and to 220.53 Adoption of chapter 214.-The tax carry out the provisions of this chapter or to imposed by this chapter is hereby made subject regulate, warn, or guide traffic. This subsection to chapter 214, as that chapter is modified by shall not limit those counties which have the §220.15 and by paragraphs 220.23(2)(c) and (d). charter powers to provide and regulate arterial, History.-~! . rh. 7 1-984. toll, and other roads, bridges, tunnels, and related facilities from the proper exercise of those powers by the placement and mainte- nance oftraffic-control devices which conform to 1984 §316.006 ADDENDUM §32:ps

the manual and. specifications of the department trolled access roadways by any class or kind of of transportation on streets and highways located traffic; within municipal boundaries. (n) Prohibiting or regulating the use of (3) COUNTIES.-Counties shall have orig- heavily traveled streets by any class or kind of inal jurisdiction over all streets and highways traffic found to be incompatible with the normal located within their boundaries, except all state and safe movement of traffic; roads and those streets and highways specified (o) Designating hazardous railroad grade- in subsection (2), and may place and maintain crossings in conformity to criteria promulgated such traffic control devices which conform to the by the department of transportation; manual and specifications of the department of (p) Designating and regulating traffic on transportation upon all streets and highways play streets; under their original jurisdiction as they shall (q) Prohibiting pedestrians from crossing deem necessary to indicate and to carry out the a roadway in a business district or any designated provisions of this chapter or to regulate, warn, highway except on a crosswalk; or guide traffic. (r) Regulating pedestrian crossings at un- History.-§!, ch. 7 ! -135; §t. ch. 7 1-982. marked crosswalks; •Note.-Effective January !, !9n. Note.-See fonner §§!86.02, :ll 7.0 12. :1!7.02! and :Jt 7.0:ll. (s) Regulating persons upon skates, coast- ers, and other toy vehicles; *316.007 Provisions uniform throughout (t) Adopting and enforcing such tempo· rary or experimental regulations as may be state.-The provisions of this chapter shall be necessary to cover emergencies or special condi- applicable and uniform throughout this state tions. and in all political subdivisions and municipali- (2) The municipality, through its duly ties therein, and no ]ocal authority shall enact authorized officers, shall have nonexclusive or enforce any ordinance on a matter covered by jurisdiction over the prosecution, trial, adjudica- this chapter unless expressly authorized. How- tion, and punishment of violations of this ever, this section shall not prevent any local chapter when a violation occurs within the authority from enacting an ordinance when municipality and the person so charged is such enactment is necessary to vest jurisdiction charged by a municipal police officer. The of violation of this chapter in the local court. disposition of such matters in the municipality History.-§!, ch . 71-!35; §2. ch. 7 !-982. shall be in accordance with that municipality's •Note.-Effective January !, !972. charter. This subsection shall not limit those counties which have the charter power to provide and regulate arterial, toll, and other *316.008 Powers of local authorities.- roads, bridges, tunnels, and related facilities ( I) The provisions of this chapter shall not from the proper exercise of those powers be deemed to prevent local authorities, with pertaining to the consolidation and unification respect to streets and highways under their of a traffic court system within said counties. jurisdiction and within the reasonable exercise of (3) No local authority shall erect or main- the police power, from: tain any official traffic control device at any (a) Regulating or prohibiting stopping, location so as to regulate the traffic on any state standing, or parking; road unless approval in writing has first been (b) Regulating traffic by means of police obtained from the department of transportation. officers or official traffic control devices; History.-§! , ch. 7 1-!3.1; §3, ch. 7 1-982. (c) Regulating or prohibiting processions or •Note.-Effective Janua ry !, !972. ~ssemblages on the streets or highways, includ- mg all state or federal highways lying within their boundaries; (d) Designating particular highways or roadways for use by traffic moving in one direc- CHAPTER 32:1 tion; (e) Establishing speed limits for vehicles in MOTOR CARRIERS; public parks; FREIGHT-FORWARDING ACT (f) Designating any street as a through street or designating any intersection as a stop PART I or yield intersection; MOTOR CARRIERS (g) Restricting the use of streets; (h) Regulating the operation of bicycles; 323.15 Road tax; advance deposits; lien for (i) Regulating or prohibiting the turning of taxes; enforcement of lien; records; vehicles or specified types of vehicles; statements, etc. (j) Altering or establishing speed limits within the provisions of this chapter; 323.15 Road tax; advance deposits; lien (k) Requiring written accident reports; for taxes; enforcement of lien; records; state- (l) Designating no-passing zones; ments, etc.- (m) Prohibiting or regulating the use of con- ( 1) There shall be coll ected by July 1 of 1985 §323.15 ADDENDUM §323.15

each vear from every motor carrier for each and December 31, seventv-five dollars; between motor. vehide controfled by such motor carrier .January 1 and March ·31, fifty dollars; be- which travels over the public highways of this tween Ap ri l 1 and June 30, twenty-five dollars. state, a road tax as follows: ( b l If the annual tax is fifty dollars, and (a) Fifteen dollars for each truck or trac- the motor vehicle is placed in service between tor, regardless of the number of axles, which .July 1 and September 30, then fifty dollars is operates exclusively within twenty-five miles of to be paid ; between October 1 and December 31, its place of domicile; and fifteen dollars for th irt~r-seven dollars and fifty cents; between each truck with two axles wherever it operates. .January 1 and March 31, twenty-five dollars; (b) Fifty dollars for each truck with three between April 1 and June 30, twelve dollars axles. and fifh· cents. (c) One hundred dollars for each truck with (c) ·If the annual tax is forty dollars, and four axles. the motor vehide is placed in service between (d) One hundred dollars for each tractor July 1 and Septemuer 30, then forty dollars is except those controlled by carriers whose au- to be paid; between October 1 and December thority from the commission is limited to the 31, thirty dollars; between January 1 and March transportation of household goods or mobile 31, twenty dollars; between April 1 and .June homes, for which the road tax shall be forty 30, ten dol lars. dollars; provided, however, in those instances (d) If the annual tax is twenty-five dollars, where a carrier domiciled in Florida on or and the motor vehicle is placed in service be- north of U. S. highway 90 and operating ex- clusively on or north of said highway in inter· tween July 1 and December 31, then twenty-five state commerce only, the road tax on each dollars is to be paid; between January 1 and tractor so operated by said carrier shall be ten June 30, twelve dollars and fifty cents. dollars. (e) If the annual tax is fifteen dollars, and (e) Fifty dollars for each tractor controlled the motor vehicle is placed in service between by holders of only a permit issued pursuant to July 1 and December 31. then fifteen dollars is ~323.05. to be paid; between .January 1 and June 30, (f) Ten dolla1·s for each truck or tractor seven dollars and fifty cents. controlled by a motor carrier holding a cer- (5l Pursuant to the rules and regulations of tificate of registration issued pursuant to the commission, a motor carrier may lease ve- ~323.28, authorizing the operation in Florida hicles to another motor carrier without the pay- of motor vehicles under exemptions provided ment of additional road tax, provided that by the interstate commerce act. when the tax that has been paid on the vehicle (g) Twenty-five dollars for each bus with is less than that required when the vehicle is a capacity of twelve passengers or less. controlled by the lessee, then the lessor may (h) Fiftv dollars for each bus with a ca- surrender his road tax plate and upon payment pacity of no't more than twenty-one passengers. of the additional amount receive the required (i) One hundred dollars for each bus with plate. a capacity of more than twenty-one passengers. *(6) The road tax provided for in this sec- (j) Five dollars for each motor vehicle tion s hall be in lieu of all other taxes and fees leased to a motor carrier for not more than of every kind, character and description, state, fifteen days pursuant to the rules and regula- county or municipal, including excise and li- tions of the commission. cense taxes levied o1· imposed against such mo- (2J lVIotor carriers shall receive as evidence tor caniers, or the operation of such bu siness of payment of the road tax a plate which shall and facilities thereof, or their property, except be displayed upon the vehicle for which the tax ad valorem taxes levied upon the property was paid. The plate is nontransferable from other than motor vehicles of such motor car- one vehicle to another except pursuant to the riers, the gasoline tax and motor vehicle fuel rules and regulations of the commission. How- tax, the motor vehicle license tax now or here- ever, if a vehicle is 1·emoved from service and after provided for by law, the sales tax imposed replaced by another vehicle, a new plate will be by chapter 2l2, and the income tax imposed issued at no fee pursuant to the rules and by chapter 220. regulations of the commission. (7) The books and records of all motor car- (:3) The road tax shall be applicable to all riers shall be at all times open to inspection motor carriers required by this part to ob- of the commission or any agent by it appointed tain a certificate or permit from the commis- for such purpose. The commission shall keep a :;;ion, whether or not said certificate or permit true and accurate list of all motor carriers to has been secured bv said motor carrier. whom certificates shall be issued with the post ( 4 > The road t~x collected shall be only fo1· office address of each . the remaining portion of the year from when Hislory.-§16. ch. H764 . 1931: CGL 1936 Supp. 13351151; ~3. the motor vehicle is placed in service by the rh . 18026. 1937: n . rh . 22834 . 1945: n. ch . 26663 . 1951 : u. ch . 61-272 : !1 , ch. 63·279 ; H. ch . 63-496; !1 . ch . 65 · 337 ; H I. 2. motor carrier as fo llows: ch. 67-:!97: §2, ch. 71·984 . (a) If the annual tax is one hundred dollars •Note.-Subsection (6). as amended. effective January I, 1972. and the motor vehicle is placed in service be- rf.-!323 .05 Permit to operate mot o r vehicles for hire . tween July 1 and September 30, then one hun- dred dollars is to be paid: between October 1 1986 §339.241 ADDENDUM §339.241

CHAPTER 339 primary highway, except the following : (a) Junkyards which are screened by FLORIDA HIGHWAY CODE, natural objects, plantings, fences or other SIXTH PART appropriate means so as not to be visible from the main traveled way of the highway Financing; Miscellaneous or otherwise removed from sight. (b) Junkyards or scrap metal processing 339.241 Florida junkyard control law. facilities which are located in areas which are zoned for industrial use. 339.241 Floridajunkyard controllaw.- (c) Junkyards or scrap metal processing (1) SHORT TITLE.-This section shall be facilities which are not visible from the main known as the "Florida junkyard control law." traveled way of any interstate or primary high- (2) DEFINITIONS.-Wherever used or re- way. ferred to in this section, unless a different meaning clearly appears from the context: Any junkyard in existence on December 8, 1971 (a) "Automobile graveyard" means any which the secretary determines cannot be establishment or place of business which is screened because of topography and elevation maintained, used, or operated for storing, shall not be required under this section to be keeping, buying, or selling wrecked, scrapped, removed, relocated, or disposed of until federal ruined, or dismantled motor vehid es or motor funds are available. vehicle parts. (4) REQUIREMENTS AS TO FENCES; (b) "Junk," "junkyard," and "scrap RULES AND REGULATIONS; EXPENDI- metal processing facility" means the same as TURE OF FUNDS.- described in paragraphs 205.371 (1) (a), (b), (a) A fence constructed under the provisions and (e). of this section shall be kept in good order and (c) "Areas zoned for industrial use" means repair, and any advertisement thereon shall be all areas zoned for industrial use by municipal regulated by a pplicable state law. or county governmental units within the state or (b) The department shall have the power to an unzoned industrial area as defined by the promulgate rules and regulations governing the department and approved by the secretary of location , construction, plantings, and materials trans portation. Such areas must be ba sed upon of said fence, living or otherwise. the existence of at least one industrial activity (c) The department is authorized to spend other than the junkyard or scrap metal process- such funds as are necessary to obtain federal-aid ing plant. funds for the purposes described in this (d) " Distance from edge of right-of-way" subsection. means the distance presently defined in sub- (5) EMINENT DOMAIN.-The power of section (g), section 136, title 23, United States eminent domain is vested in the department to Code. condemn such interests in land as the depart- (e) "Fence" means an enclosure so con- ment shall determine are required for the pur- structed or planted and maintained as to obscure poses of screening, relocation, removal, or the junkyard from ordinary view to those persons disposal of junkyards and scrap metal proces- passing upon the highways in this state. sing facilities . Such condemnation proceedings (f) "Interstate highway" means the system shall be maintained in the name of the depart- presently defined in subsection (e), section 103, ment under the procedure defined and set forth title 23, United States Code. in chapters 73 and 74. Such relocation, removal, (g) "Federal aid primary highway" means or disposal, for which compensation shall be any highway within that portion of the state paid, shall be restricted to those projects highway system as included and maintained wherein federal participation is available. under chapter 335, including extensions of such (6) ENFORCEMENT.-H is the function system within municipalities, which has been and duty of the department to administer and approved by the secretary of transportation enforce the provisions of this section. In addition pursuant to subsection (b), section 103, title 23, to the power of eminent domain, negotiation, United States Code. and compensation, the department or any public (h) "Person" means any individual, firm, official may apply to the circuit court or other agency, company, association, partnership, court of competent jurisdiction of the county in business trust, joint stock company, or corpora- which said junkyard or scrap metal processing tion . facility may be located for an injunction to abate (i) "Department" means the department such nuisance. of transportation of the state. (7) PENALTY.-Any person violating any (3) RESTRICTIONS AS TO LOCATION. provision of this section shall be subject to fine -No junk, junkyard, automobile graveyard, or of not less than $50 or more than $200. Each day scrap metal processing facility shall be operated during any portion of which such violation occurs or maintained within 1,000 feet of the nearest constitutes a continuing separate offense. edge of the right-of-way of any interstate or History.-§§ 1·6. ch. 7 1·338: ~§1 -7. ch. 71-97~.

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Highlighted: 104752 (1) View Original Page http://aixtcp.cpa.state.tx.us/opendocs/open32/201108230h.html First Match

Texas Comptroller of Public Accounts STAR System

201108230H

SOAH DOCKET NO. XXX-XX-XXXX.13 CPA HEARING NO. 104,752

RE: ************* TAXPAYER NO.: ************* AUDIT OFFICE: ************* AUDIT PERIOD: January 1, 2009 THROUGH December 31, 2009

Franchise Tax/RFD

BEFORE THE COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS

SUSAN COMBS Texas Comptroller of Public Accounts

JAMES ARBOGAST Representing Tax Division

************* Representing Claimant

SOAH DOCKET NO. XXX-XX-XXXX.13 CPA HEARING NO. 104,753

RE: ************* TAXPAYER NO.: ************* AUDIT OFFICE: ************* AUDIT PERIOD: January 1, 2008 THROUGH December 31, 2008

Franchise Tax/RFD

BEFORE THE COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS

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SUSAN COMBS Texas Comptroller of Public Accounts

JAMES ARBOGAST Representing Tax Division

************* Representing Claimant

COMPTROLLER’S DECISION

************* (Claimant) filed amended Texas Franchise Tax Reports for the 2008 and 2009 report years claiming a refund on franchise tax paid in error. Claimant filed the amended reports using the three-factor apportionment method under the Multistate Tax Compact (MTC), rather than the single-factor apportionment method permitted under the Texas Franchise Tax Act, which was used in filing its original franchise tax reports. The Texas Comptroller of Public Accounts (Comptroller) denied the refund claims on the grounds that Chapter 141 of the Texas Tax Code (TEX. TAX CODE ANN. Section 141.001 – 141.006), which adopted the MTC, does not apply to the Texas franchise tax. Claimant requested a refund hearing, contending that the current version of the franchise tax, which is based on a taxable entity’s taxable margin, is an income tax and therefore subject to the MTC. Comptroller Staff (Staff) asserts that the Texas Franchise Tax Act requires use of the single gross receipts factor mandated by TEX. TAX CODE ANN. (Tax Code) Section 171.106, which does not provide for an alternative apportionment method. In his Proposal for Decision (PFD), the Administrative Law Judge (ALJ) concludes that Claimant may not elect the MTC three-factor apportionment formula and is required to use the single-factor method, and therefore recommends that the refund claims be denied.

I. PROCEDURAL HISTORY, NOTICE & JURISDICTION

On April 5, 2011, Staff referred the cases to the State Office of Administrative Hearings (SOAH) for hearings based on the parties’ written submissions. The parties subsequently requested that the cases be joined for purposes of conducting the hearing and issuing a PFD. The ALJ issued an order granting the joinder. The Comptroller was represented by Assistant General Counsel James Arbogast. Claimant was represented by *************, Claimant’s Vice President of Finances. ALJ Peter Brooks closed the record on June 15, 2011. There are no issues of notice or jurisdiction in this proceeding. Therefore, these matters are set out in the Findings of Fact and Conclusions of Law without further discussion here.

II. REASONS FOR DECISION

A. Evidence Presented

Claimant provided the Amended Texas Franchise Tax Reports for report year 2008. Staff filed for each hearing the 60-day Letter, the refund denial letter, and the refund audit plan. Staff also submitted the pleadings filed by the parties while these matters were pending before the Comptroller. The documents have been admitted into the record without objection.

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B. Adjustments

Staff has not agreed to any adjustments.

C. ALJ’s Analysis

Resolution of the issue presented by these contested cases turns on whether Claimant is required to use the single gross receipts factor in apportioning a taxable entity’s margin to Texas as provided for under Tax Code Section 171.106(a) or may elect to use the alternate three-factor apportionment authorized under Article IV the MTC. The ALJ concludes that Claimant was required to use the single-factor method and therefore finds that Staff did not err in denying the refund claims.

Tax Code Section 171.106(a) provides for a taxable entity’s margin to be apportioned as follows:

Except as provided by this section, a taxable entity's margin is apportioned to this state to determine the amount of tax imposed under Section 171.002 by multiplying the margin by a fraction, the numerator of which is the taxable entity's gross receipts from business done in this state, as determined under Section 171.103, and the denominator of which is the taxable entity's gross receipts from its entire business, as determined under Section 171.105.

The exceptions provided for in Tax Code Section 171.106, which do not apply to Claimant, still require a single factor in apportioning the taxable entity’s margin to Texas. The rules adopted by the Comptroller in implementing Tax Code Section 171.106 apply the statutory directive without any modification. SEE 34 TEX. ADMIN. CODE Section 3.591(c), which tracks Section 171.106(a) and directs that a “taxable entity's margin is apportioned to this state to determine the amount of franchise tax due by multiplying the taxable entity's margin by a fraction, the numerator of which is the taxable entity's gross receipts from business done in this state and the denominator of which is the taxable entity's gross receipts from its entire business.” The rule was effective January 1, 2008, and applied to Claimant’s 2008 and 2009 franchise tax reports. The Comptroller clearly did not contemplate that an alternative method was available for apportioning a taxable entity’s margin. This is further reflected in the Frequently Asked Questions (FAQ) that were issued to advise taxable entities in filing their Texas Franchise Tax Reports. In FAQ 2 issued under the topic heading Apportionment, the Comptroller advised taxable entities that there were no changes to how receipts are apportioned:

The apportionment factor is generally the same as under previous law; however, the throw-back provisions were repealed. Also see exceptions for Texas gross receipts for transactions between members of a combined group under TTC 171.1055. [ENDNOTE: (1)]

This advice was subsequently reaffirmed in a more detailed policy statement that was adopted and issued in 2010 as State Tax Automated Research System (STAR) Accession No. 201007003L (July 1, 2010). The policy statement addresses the question whether a taxable entity may elect to use the MTC’s three-factor apportionment formula and explicitly provides that taxable entities are required to use the single-factor apportionment factor:

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Use of the Multistate Tax Compact (MTC) Apportionment Formula is Prohibited for Texas Franchise Tax:

The Texas franchise tax is apportioned to Texas using a single-factor apportionment formula based on gross receipts as specifically provided in Texas Tax Code Section 171.105. The apportionment provision in Texas Tax Code Chapter 141, related to the Multistate Tax Compact (MTC), does not apply to the revised Texas franchise tax and entities may not elect to use the MTC's three -factor apportionment formula in lieu of the formula specified in Texas Tax Code Chapter 171.

This policy statement was added to the Apportionment FAQs as FAQ 3 on January 26, 2011.

The Comptroller’s determination that the single-factor apportionment continues to apply unchanged to the franchise tax, even after the extensive revisions adopted in 2006 by the Legislature (HB 3), [ENDNOTE: (2)] is also reflected in the Legislature’s own assessment of the proposed changes. In the House Research Organization’s Bill Analysis, the proposed apportionment provisions are described as applying a single gross receipts factor, and no reference is made directly or indirectly to the three-factor formula available under the MTC. [ENDNOTE: (3)]

Claimant’s contention that it could elect to use the MTC’s three-factor formula relies principally on the fact that TEX. TAX CODE ANN. Section 171.112(g), which provided that Chapter 141 did not apply to Chapter 171 (i.e., Franchise Tax), was repealed by HB 3, and not reenacted by the Legislature. Claimant argues that, as the specific bar against applying the MTC to the Franchise Tax Act was repealed, the MTC’s three-factor formula may be used in apportioning its margin to Texas. However, notwithstanding the absence of the repealed statutory prohibition, the specific and unqualified requirement in Tax Code Section 171.106(a) to use a single-factor formula, buttressed by the Comptroller’s rule and policy statements, is more than sufficient to preclude a taxable entity from electing to use the MTC three-factor formula.

The Comptroller’s interpretation of the revised Franchise Tax Act is entitled to due deference as the agency entrusted with implementing the statute, as long as its statutory construction is reasonable and does not contradict the plain language of the statute. SEE TENNESSEE GAS PIPELINE CO. V. RYLANDER, 80 S.W.3d 200, 203 (Tex. App.--Austin 2002, pet. denied). The Comptroller’s interpretation as stated in both its rules and policy statements is consistent with the plain language of Section 171.106 and with the intent of the Legislature. Moreover, Article IV of the MTC was adopted by the 60th Legislature in Tax Code Section 141.001, effective June 13, 1967. Section 141.001 has not been reenacted or amended since its adoption. In contrast, the single-factor sales formula has survived numerous amendments, most recently the 2006 adoption of a franchise tax based on a taxable margin, which lends further weight to the Comptroller’s position that no substantive changes to the single-factor apportionment provisions were intended with the latest changes. As noted by Staff the specific rule in Tax Code Section 171.106(a) addressing apportionment controls over the general provisions of Tax Code Section 141.001.

In summary, the ALJ concludes that Claimant was required to follow the single-factor apportionment formula under Section 171.106, and therefore its amended franchise tax reports and the attendant refund claims were properly

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rejected by Staff.

III. FINDINGS OF FACT

1. ************* (Claimant) filed amended Texas Franchise Tax Reports for the 2008 and 2009 report years claiming a refund on franchise tax paid in error.

2. Claimant filed the amended reports using the three-factor apportionment method under the Multistate Tax Compact (MTC). TEX. TAX CODE ANN. Section 141.001.

3. Claimant had used the single-factor apportionment method set out in TEX. TAX CODE ANN. Section 171.106(a) in filing its original franchise tax reports.

4. The Texas Comptroller of Public Accounts (Comptroller) denied the refund claims on the grounds that Chapter 141 of the Texas Tax Code (TEX. TAX CODE ANN. SectionSection141.001 – 141.006), which adopted the MTC, does not apply to the Texas franchise tax.

5. Claimant requested a refund hearing contesting the denial.

6. On April 5, 2011, Comptroller Staff (Staff) referred the cases to the State Office of Administrative Hearings (SOAH) for hearings based on the parties’ written submissions.

7. Staff issued Notices of Hearing by Written Submission. The Notices of Hearing contained a statement of the nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.

8. The parties subsequently requested that the cases be joined for purposes of conducting the hearing and issuing a proposal for decision. The Administrative Law Judge (ALJ) issued an order granting the joinder.

9. ALJ Peter Brooks closed the record on June 15, 2011.

IV. CONCLUSIONS OF LAW

1. The Comptroller has jurisdiction over this matter pursuant to TEX. TAX CODE ANN. ch. 111.

2. SOAH has jurisdiction over matters related to the hearing in this matter, including the authority to issue a proposal for decision with findings of fact and conclusions of law pursuant to TEX. GOV’T CODE ANN. ch. 2003.

3. The Comptroller provided proper and timely notice of the hearing pursuant to TEX. GOV’T CODE ANN. ch. 2001.

4. TEX. TAX CODE ANN. Section 171.106(a) provides for a taxable entity’s margin to be apportioned by multiplying the margin by a fraction, the numerator of which is the taxable entity's gross receipts from business done in this state, as determined under Section 171.103, and the denominator of which is the taxable entity's gross receipts from its entire business, as determined under Section 171.105.

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5. Rule 3.591, 34 TEX. ADMIN. CODE Section 3.591(c), tracks Section 171.106(a) and directs that a “taxable entity's margin is apportioned to this state to determine the amount of franchise tax due by multiplying the taxable entity's margin by a fraction, the numerator of which is the taxable entity's gross receipts from business done in this state and the denominator of which is the taxable entity's gross receipts from its entire business.” The rule was effective January 1, 2008, and applied to Claimant’s 2008 and 2009 franchise tax reports.

6. In Frequently Asked Question (FAQ) 2 that was issued to advise taxable entities in filing their Texas Franchise Tax Reports, the Comptroller advised taxable entities that there were no changes to how receipts are apportioned. SEE, http://www.window.state.tx.us/taxinfo/franchise/faq_apport.html#apport3.

7. The Comptroller issued and adopted a policy statement affirming that taxable entities were to use the single-factor apportionment formula and not the MTC’s three-factor formula. State Tax Automated Research System (STAR) Accession No. 201007003L (July 1, 2010). This policy statement was also added to the Apportionment FAQs as FAQ 3.

8. The House Research Organization’s Bill Analysis of the proposed apportionment provisions are described as applying a single gross receipts factor, and no reference is made directly or indirectly to the three-factor formula available under the MTC. SEE, http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=793&Bill=HB3#.

9. TEX. TAX CODE ANN. Section 171.112(g), which provided that TEX. TAX CODE ANN. ch. 141 did not apply to TEX. TAX CODE ANN. ch. 171 (i.e., the Texas franchise tax), was repealed in 2006 by the Legislature, and not reenacted. Tex. H.B. 3, 79th Leg., 3rd C. S. (2006).

10. The Comptroller’s interpretation of the revised Franchise Tax Act is due deference as the agency entrusted with implementing the statute, as long as its statutory construction is reasonable and does not contradict the plain language of the statute. SEE TENNESSEE GAS PIPELINE CO. V. RYLANDER, 80 S.W.3d 200, 203 (Tex. App.--Austin 2002, pet. denied). The Comptroller’s interpretation as stated in both its rules and policy statements is consistent with the plain language of Section 171.106 and with the intent of the Legislature.

11. Based on the foregoing Findings of Fact and Conclusions of Law, Claimant was required to use the single gross receipts factor in apportioning its margin to Texas, and consequently the amended reports and attendant refund claims were properly rejected by Staff.

Hearing Nos. 104752 and 104753

ORDER OF THE COMPTROLLER

On June 16, 2011, the State Office of Administrative Hearings’ (SOAH) Administrative Law Judge (ALJ), Peter Brooks, issued a Proposal for Decision in the above referenced matter. The parties were given fifteen days from the date of the Decision to file exceptions with SOAH. No exceptions were filed, and the Comptroller has determined that the ALJ’s Proposal for Decision, except for

6 of 7 1/27/2015 12:05 PM 201108230H [Tax Type: Franchise] [Document Type: Hearing] - Highlig... http://cpastar2.cpa.state.tx.us/highlight/index.html?url=http://aixtcp.cpa.s...

minor changes to correct typographical or clerical errors, should be adopted as written.

The above Decision is approved and adopted in all respects. This Decision becomes final twenty days after the date Claimant receives notice of this Decision. If either party desires a rehearing, that party must file a motion for rehearing, which must state the grounds for rehearing, no later than twenty days after the date Claimant receives notice of this Decision. Notice of this Decision is presumed to occur on the third day after the date of this Decision.

Signed on this 18th day of August 2011.

SUSAN COMBS Texas Comptroller of Public Accounts

by: Martin A. Hubert Deputy Comptroller

ENDNOTE(S) (1) See, http://www.window.state.tx.us/taxinfo/franchise/faq_apport.html#apport3. (2) Tex. H.B. 3, 79th Leg., 3rd C. S. (2006). (3) http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=793&Bill=HB3#.

ACCESSION NUMBER: 201108230H SUPERSEDED: N DOCUMENT TYPE: H DATE: 08/18/2011 TAX TYPE: FRANCHISE

7 of 7 1/27/2015 12:05 PM D STATE OF MICHIGAN

COURT OF CLAIMS

INGRAM MICRO, INC. & SUBSIDIARIES, OPINION AND ORDER Plaintiff,

v Case No. 11-000035-MT

DEPARTMENT OF TREASURY, Hon. Michael J. Talbot

Defendant.

This matter comes before the Court pursuant to its sua sponte order issued to plaintiff

Ingram Micro, Inc. to show cause why judgment should not be entered in favor of defendant

Department of Treasury (Department) in light of the retroactive effect of 2014 PA 282 (PA 282).

In addition, plaintiff has filed a motion for summary disposition pursuant to MCR 2.116(C)(10).

The Court concludes that the Department is entitled to judgment as a matter of law and so

DENIES plaintiff’s motion and instead GRANTS summary disposition in favor of the

Department pursuant to MCR 2.116(I)(2).

INTRODUCTION

This case is one of many cases currently pending in the Court of Claims involving

taxpayers that have claimed refunds of tax under the Michigan Business Tax (MBT) Act, MCL

208.1101 et seq., based on an election to utilize a three-factor apportionment formula under the

-1- Multistate Tax Compact (Compact) provisions, MCL 205.581 et seq. 1 The underlying premise

of these claims is that the elective three-factor apportionment provision of the Compact, as

adopted by 1969 PA 343, remained viable under the MBT Act, as enacted by 2007 PA 36. Use

of the single-factor apportionment formula under the MBT Act, it is argued, is not mandated

because the Compact provisions, including the three-factor apportionment election provisions,

remain in effect. 2

The validity of this argument was addressed on July 14, 2014, by the Michigan Supreme

Court in Int’l Business Machines Corp v Dep’t of Treasury, 496 Mich 642; 852 NW 2d 865

(2014) (“IBM”). Finding that the Legislature, in adopting the MBT Act, did not repeal by

implication the three-factor apportionment formula as set forth in MCL 205.581 et seq., the

Court concluded that the taxpayer was entitled to use the Compact’s three-factor apportionment

formula in calculating its 2008 taxes.

On September 11, 2014, in response to IBM, the Legislature enacted PA 282, which

retroactively repealed the Compact provisions under MCL 205.581 et seq., to January 1, 2008,

and mandated the use of a single-factor apportionment formula for purposes of calculating MBT.

The Court now considers the retroactive application of PA 282. Having considered the

arguments made in response to the Court’s show cause order, and for the reasons stated below,

the Court concludes that PA 282 retroactively applies to this case, and all pending MBT refund

1 Section 1 of 1969 PA 343, codified under MCL 205.581 et seq., includes the provisions of the Compact originally enacted by parties to the Compact (Member States). 2 Taxpayers in some of these cases have also argued that the Compact provisions remain in effect with regard to the Income Tax Act, MCL 206.1 et seq.

-2- actions filed in reliance on the Compact’s elective, three-factor apportionment formula under the

former MCL 205.581 et seq.

BACKGROUND

History of the Compact

The Compact is an interstate tax agreement that was originally enacted in 1967 by the

legislatures of seven states. The Compact was initially drafted out of concerns of state

sovereignty in reaction to the introduction of federal legislation that sought to regulate various

areas of state taxation. 3 The original purposes of the Compact included:

(1) facilitating proper determination of state and local tax liability of multistate taxpayers, including the equitable apportionment of tax bases and settlement of apportionment disputes; (2) promoting uniformity and compatibility in state tax systems; (3) facilitating taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration; and (4) avoiding duplicative taxation. [US Steel Corp v Multistate Tax Comm, 434 US 452, 456; 98 S Ct 799; 54 L Ed 2d 682 (1978). 4]

Michigan adopted the Compact provisions, effective in 1970, through enactment of 1969 PA

343.

3 The legislation, which was never enacted, was introduced in the wake of Northwestern States Portland Cement Co v Minnesota, 358 US 450; 79 S Ct 357; 3 L Ed 2d 421 (1959), which held that there is no Commerce Clause barrier to the imposition of a direct income tax on a foreign corporation carrying on interstate business within a taxing state. 4 The Compact was never approved by Congress, but it was upheld against constitutional challenges in US Steel, 434 US 452.

-3- Apportionment Formulas under the Compact and the MBT Act

The present case, and others like it, concern two alternative methods of apportioning

income for purposes of calculating MBT. Under the MBT Act, created by 2007 PA 36, 5 income

is apportioned by applying a single factor apportionment formula based solely on sales. MCL

208.1301(2). In contrast, under the Compact’s election provision, income may be apportioned

using an equally-weighted, three-factor apportionment formula based on sales, property and

payroll. The potential effect of electing “out” of the MBT Act’s single-factor apportionment

methodology is a reduction of the overall apportionment percentage for companies that do not

have significant property and payroll located in Michigan.

Decision in IBM

In IBM, 496 Mich 642, the Supreme Court considered the issue of whether MBT

taxpayers must use a single-factor apportionment formula as mandated by the MBT Act or

whether MBT taxpayers may elect to apply a three-factor apportionment formula under the

Compact. The parties were asked by the Court to brief four issues:

(1) whether the plaintiff could elect to use the apportionment formula provided in the Multistate Tax Compact, MCL 205.581, in calculating its 2008 tax liability to the State of Michigan, or whether it was required to use the apportionment formula provided in the Michigan Business Tax Act, MCL 208.1101 et seq.; (2) whether § 301 of the Michigan Business Tax Act, MCL 208.1301, repealed by implication Article III(1) of the Multistate Tax Compact; (3) whether the Multistate Tax Compact constitutes a contract that cannot be unilaterally altered or amended by a member state; and (4) whether the modified gross receipts tax component of the Michigan Business Tax Act constitutes an income tax under the Multistate Tax Compact. [Int’l Business Machines v Dep’t of Treasury, 494 Mich 874; 832 NW2d 388 (2013).]

5 For a history of business taxation in Michigan, see IBM, 496 Mich at 648-650.

-4- In its decision, the Court determined that for tax years 2008 through 2010, 6 the

Legislature did not repeal by implication the three-factor apportionment formula as set forth in

MCL 205.581 et seq., and concluded that the taxpayer was entitled to use the Compact’s three-

factor apportionment formula in calculating its 2008 taxes. The Court also concluded that both

the business income tax base and the modified gross receipts tax base of the MBT are “income

taxes” within the meaning of the Compact. The Court did not reach the third issue of whether

the Compact constitutes a contract. 7 On November 14, 2014, the Michigan Supreme Court

denied reconsideration. Int’l Business Machines v Dep’t of Treasury, ___Mich___; 855 NW2d

512 (2014).

Retroactive Repeal of the Compact Provisions by PA 282

On September 11, 2014, 2013 SB 156 (SB 156) was enacted into law as PA 282,

amending the MBT Act and expressly repealing the Compact provisions, as codified under MCL

205.581 to MCL 205.589. The Legislature gave the Act retroactive effect by providing as

follows:

Enacting section 1. 1969 PA 343, MCL 205.581 to 205.589, is repealed retroactively and effective beginning January 1, 2008. It is the intent of the legislature that the repeal of 1969 PA 343, MCL 205.581 to 205.589, is to express the original intent of the legislature regarding the application of section 301 of the Michigan business tax act, 2007 PA 36, MCL 208.1301, and the intended effect

6 The Legislature explicitly repealed the Compact apportionment provisions effective January 1, 2011, through enactment of 2011 PA 40. 7 Thus, this Court is bound only by the Supreme Court’s pre-PA 282 ruling that (1) the Compact’s election provision under Article III(1) of the Compact was not implicitly repealed by enactment of the MBT Act in 2008, (2) the election provision properly applied to the modified gross receipts tax component of the MBT, and (3) IBM could elect to use the Compact’s three- factor apportionment formula in calculating its 2008 MBT liability.

-5- of that section to eliminate the election provision included within section 1 of 1969 PA 343, MCL 205.581, and that the 2011 amendatory act that amended section 1 of 1969 PA 343, MCL 205.581, was to further express the original intent of the legislature regarding the application of section 301 of the Michigan business tax act, 2007 PA 36, MCL 208.1301, and to clarify that the election provision included within section 1 of 1969 PA 343, MCL 205.581, is not available under the income tax act of 1967, 1967 PA 281, MCL 206.1 to 206.713.

PA 282 thus amended the MBT Act to express the “original intent” of the Legislature with

regard to (1) the repeal of the Compact provisions, (2) application of the MBT Act’s

apportionment provision under MCL 208.1301, and (3) the intended effect of the Compact’s

election provision under MCL 205.581. 8 The effect of the amendments, as written, retroactively

eliminates a taxpayer’s ability to elect a three-factor apportionment formula in calculating tax

liability under both the MBT Act and income tax act.

PROCEDURAL SUMMARY

During the pertinent period, plaintiff was an out-of-state corporation with business

activities in Michigan. Plaintiff, and other similar taxpayers, filed their MBT returns calculating

tax by taking an election under Article III(1) of the Compact to apportion the MBT tax base

using a three-factor apportionment formula. The returns reflected overpayments of tax, and

taxpayers requested refunds of these amounts. The Department denied the refund claims,

asserting that use of the three-factor apportionment was improper and that use of the single-

factor apportionment was mandated by MCL 208.1301. In response, taxpayers paid the tax and

filed actions in the Court of Claims.

8 PA 282 also clarified that the Compact’s election provision is not available under the income tax act of 1967, 1967 PA 281.

-6- Pending the Supreme Court’s resolution of IBM, this Court ordered this case and other

similar cases held in abeyance. After the case was decided, the Court lifted its order holding the

cases in abeyance and ordered the Department to brief the Court on why IBM, 496 Mich 642,

should not control the disposition of these cases. After the Legislature enacted PA 282 that

retroactively repealed the Compact provisions, the Court issued the show cause order concerning

that legislation. Plaintiff also filed a motion for summary disposition. The Court now considers

the arguments against retroactive application of PA 282.

LEGAL ANALYSIS

I. THE UNILATERAL REPEAL OF THE COMPACT PROVISIONS BY ENACTMENT OF PA 282 WAS A PERMISSIBLE EXERCISE OF THE LEGISLATURE’S SOVEREIGN AUTHORITY TO LEGISLATE

The Court first considers whether the Legislature was authorized to unilaterally repeal the

Compact provisions by enacting PA 282. This determination will depend on an analysis of (1)

whether the Compact created a binding contract with Member States, (2) whether enactment of

PA 282 impaired contractual obligations under the federal or state constitutional Contracts

Clauses, and (3) under Michigan law, whether 1969 PA 343 could restrict subsequent

legislatures from repealing the Compact provisions. For the following reasons, the Court

concludes that the Legislature acted constitutionally and within its sovereign authority to

legislate when it repealed the Compact provisions through enactment of PA 282.

A. THE COMPACT IS NOT A BINDING CONTRACT

In evaluating whether repeal of the Compact by application of PA 282 unconstitutionally

impairs a contract or whether a future legislature is bound to the provisions created by 1968 PA

-7- 343, there must first be a determination that a contract exists. See IBM, 496 Mich at 681

(MCCORMACK, J., dissenting).

1. The Compact Lacks the “Classic Indicia” of a Binding Interstate Compact under Federal Compact Law

The United State Supreme Court has recognized that not all interstate compacts are

binding contracts that restrict future legislatures. See Northeast Bancorp, Inc v Bd of Governors,

472 US 159; 105 S Ct 2545; 86 L Ed 2d 112 (1985). While a Congressionally-approved

interstate compact has the force of federal law and is binding on Member States, 9 an interstate

compact that has not been approved by Congress, such as the Compact here, can be either a

binding interstate compact or merely an advisory compact. 10

The test for distinguishing between an advisory compact and a binding interstate compact

is set forth in Northeast Bancorp, as further explained in Seattle Master Builders Ass’n v Pacific

Northwest Electric Power, 786 F2d 1359, 1363 (CA 9, 1986). The three “classic indicia” of a

binding interstate compact are: (1) the establishment of a joint regulatory body, (2) the

requirement of reciprocal action for effectiveness, and (3) the prohibition of unilateral

modification or repeal. Northeast Bancorp, 472 US at 175; Seattle Master Builders, 786 F2d at

1363. Looking at the three indicia of a binding interstate compact, the Compact has none of

these features and is more properly characterized as a non-binding advisory compact.

9 The Compact Clause of the US Constitution, art I, §10, cl 3, provides, “No State shall, without the Consent of the Congress, . . . enter into any Agreement or Compact with another State . . . .” 10 Advisory interstate compacts have no formal or regulatory enforcement mechanisms and are intended to study and make recommendations on interstate problems. Broun, et al, The Evolving Use and the Changing Role of Interstate Compacts: A Practitioner’s Guide (2006), p 13.

-8- a. The Compact did not establish a joint regulatory agency

A hallmark of an advisory compact, as opposed a binding contract, is that advisory

compacts “cede no state sovereignty nor delegate any governing power to a compact-created

agency.” Broun, et al, The Evolving Use and the Changing Role of Interstate Compacts: A

Practitioner’s Guide (2006), p 14. When the Compact, through Article VI, established the

Multistate Tax Commission (Commission), 11 no governing or regulatory powers were conferred.

Enumerated in Article VI, the powers of the Commission are (1) to study state and local tax

systems, (2) to develop and recommend proposals for greater uniformity, and (3) to compile

information helpful to the states. 12 None of these purposes is regulatory, and it in no way

indicates a delegation of sovereign authority to tax.

The conclusion that the Compact did not cede state authority or governing power to the

Commission was expressly acknowledged by the Court in US Steel Corp:

[The Compact] does not purport to authorize the Member States to exercise any powers they could not exercise in its absence. Nor is there any delegation of sovereign power to the Commission; each State retains complete freedom to adopt or reject the rules and regulations of the Commission. [Emphasis added.] [US Steel Corp, 434 US at 473.]

In summary, the Compact, by its terms, does not create a regulatory body.

b. The Compact does not require reciprocal action

There is nothing reciprocal about the Compact’s provisions. Each member state operates

its respective tax systems independently from the tax systems of other Member States, and the

11 MCL 205.581, Art VI. 12 Id. at Art VI(3).

-9- determination of tax in one state is generally independent of the determination in another state.

With respect to apportionment formulas, in particular, Articles III(1) and IV’s application in one

member state has no bearing on another state. And the functionality of one member state’s

apportionment methodology does not hinge on whether another member state’s apportionment

methodology is reciprocal in nature. As the Supreme Court recognized in Moorman Mfg Co v

Bair, 437 US 267, 274; 98 S Ct 2340; 57 L Ed 2d 197 (1978), “the States have wide latitude in

the selection of apportionment formulas.” Consistent with Moorman, a Member State’s decision

to allow or eliminate a certain apportionment formula is unaffected by the choice of formula that

another member state has made.

c. The Compact allows unilateral withdrawal and modification

Under the express terms of the Compact, Member States are free to unilaterally withdraw

at any time without notice to another member state. MCL 205.581, Art X(2) (“Any party state

may withdraw from this compact by enacting a statute repealing the same.) See also US Steel,

434 US at 473 (“[E]ach State retains complete freedom to adopt or reject the rules and

regulations of the Commission.”) Thus unilateral withdrawal is clearly permitted under the

Compact.

Whether unilateral modification is permitted under the Compact is less clear and is not

directly addressed under the Compact. However, three factors lead to a conclusion that Member

States did not intend to restrict their ability to vary terms of the Compact. First, as pointed out

recently by the United States Supreme Court, “States rarely relinquish their sovereign powers, so

when they do we would expect a clear indication of such devolution, not inscrutable silence.”

Tarrant Regional Water Dist v Herrmann, ___ US ___; 133 S Ct 2120, 2133; 186 L Ed 2d 153

-10- (2013). Because there is no such “clear indication” under the terms of the Compact that states

are prevented from asserting their sovereign powers to legislate and vary the Compact’s terms, it

is reasonable to conclude that the parties were free to unilaterally amend the Compact provisions,

including Articles III(1) and IV.

Second, language in the Compact that it “shall be liberally construed as to effectuate the

purposes thereof,” supports an interpretation that flexibility in administering Compact provisions

was contemplated. MCL 205.581, Art XII.

Third, the Member States’ course of performance shows that unilateral amendments to or

withdrawals from the Compact have long been accepted. As pointed out by the dissent in IBM,

496 Mich at 681-682, “[M]ember [S]tates did not view strict adherence to Articles III and IV as a

binding contractual obligation, as Compact members have deviated without objection from other

members.” 13 Moreover,

“It bears emphasizing that Compact members have not only refrained from bringing legal action against one another for deviating from Articles III and IV, they have endorsed the Commissioner’s interpretation of the Compact: in the Gillette [Co v Franchise Tax Bd, 151 Cal Rptr 3d 106; 291 P3d 327 (2013)] litigation, all of the member states jointly filed an amicus brief urging the Supreme Court of California to reject the lower court’s construction of the Compact as a binding contract. [IBM, 496 Mich at 682 n 7 (MCCORMACK, J., dissenting).]

13 As summarized in Hellerstein & Hellerstein, State Taxation (2014), the course of performance of states with regard to the Compact provisions generally, and the elective apportionment provisions specifically, shows that unilateral repeal and modifications to the Compact provisions have been widespread.

-11- Because the Compact fails to create a regulatory body, contemplates no reciprocal

actions, and contains no bar to unilateral deviations or repeal, the Court concludes that none of

the “classic indicia” of a binding compact exist. Rather than a binding interstate contract, it is

more properly interpreted as an advisory compact that did not act to bind future legislatures.

2. The Compact is not a Binding Contract under Michigan Law

Because it was not congressionally-approved, the Compact is governed by state law. See

Doe v Young Marines of The Marine Corps League, 277 Mich App 391, 399; 745 NW2d 168

(2007) (finding that Michigan courts are not bound to follow a federal court’s interpretation of

state law.) See also McComb v Wambaugh, 934 F2d 474, 479 (CA 3, 1991) (finding that

because a non-Congressionally approved compact does not express federal law, it must be

construed as state law.) Michigan law therefore governs the interpretation of the Compact.

In Michigan, there is a “strong presumption that statutes do not create contractual rights.”

Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich 642, 661; 698 NW2d 350 (2005).

“In order for a statute to form the basis of a contract, the statutory language must be plain and

susceptible of no other reasonable construction than that the Legislature intended to be bound to

a contract.” Id. at 662 (quotation marks and citation omitted). As noted in the dissent in IBM,

“[t]his presumption is grounded in the principle that ‘surrenders of legislative power are subject

to strict limitations that have developed in order to protect the sovereign prerogatives of state

governments.’ ” IBM, 496 Mich at 682 (MCCORMACK, J., dissenting), quoting Studier, 472 Mich

at 661.

There are no words in the Compact, as adopted by the Legislature under 1969 PA 343,

that indicate that the state intended to be bound to the Compact, and specifically to Article III(1).

-12- Therefore, the presumption must be that the state did not surrender its legislative power to

require use of a particular apportionment formula. Such interpretation comports with the

Supreme Court’s recognition of “the basic principle[] that the States have wide latitude in the

selection of apportionment formulas . . . .” Moorman, 437 US at 274. This interpretation is also

consistent with the Court’s recent acknowledgment that states “do not easily cede their sovereign

powers . . . .” Tarrant, 133 S Ct at 2132. Because there is no clear indication under MCL

205.581 that the state contracted away its ability to either select an apportionment formula that

differs from the Compact, or to repeal the Compact altogether, the Court concludes that no

contractual obligation was created by enactment of 1969 PA 343 that would prohibit the

enactment of PA 282. 14

B. REPEAL OF THE COMPACT BY PA 282 DOES NOT VIOLATE THE CONTRACTS CLAUSES OF THE STATE OR FEDERAL CONSTITUTIONS

The United States Constitution provides, “No State shall . . . pass any . . . Law impairing

the Obligation of Contracts . . . .” US Const, art I, § 10, cl 1. The Michigan Constitution

provides: “No . . . law impairing the obligation of contract shall be enacted.” Const 1963, art 1,

14 Even if the Compact could somehow be construed as a binding contract under Michigan law, the Member States’ course of performance supports a determination that Member States either waived or modified the Compact’s terms under Articles III(1) and IV, or materially breached the terms under Articles III(1) and IV well before the repeal of the Compact provisions under PA 282. See n 12. In addition, as suggested in the dissenting opinion in IBM, taxpayers would have no standing to enforce the terms of any purported contract that was made with Member States. [I]t is not entirely clear to me why IBM has standing to enforce the Compact as a contract, given that IBM is neither a party to the Compact nor is it clear that they were intended as a third-party beneficiary. See Schmalfeldt v North Pointe Ins Co, 469 Mich 422; 670 NW2d 651 (2003); MCL 600.1405. In any event, because I conclude that no such contractual relationship was formed, I find it unnecessary to address this issue sua sponte. [IBM at 681 n 5 (MCCORMACK, J., dissenting).]

-13- §10. “Statutes are presumed to be constitutional, and courts have a duty to construe a statute as

constitutional unless its unconstitutionality is clearly apparent.” In re Request for Advisory

Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 307; 806 NW2d 683 (2011)

(citation and quotation marks omitted). In addition, “ ‘[t]he presumption of constitutionality is

especially strong’ ” when tax legislation is concerned. Id. at 308 (citation omitted).

As discussed earlier, the Compact creates no binding contract, and therefore the

Legislature’s repeal of the Compact by PA 282 does not impair an obligation of contract in

violation of the Michigan or United States Constitutions.

C. BECAUSE LEGISLATURES CANNOT BIND SUBSEQUENT LEGISLATURES UNDER MICHIGAN LAW, 1969 PA 343 DOES NOT RESTRICT THE ABILITY OF A SUBSEQUENT LEGISLATURE TO CORRECT AN ERROR, EITHER PROSPECTIVELY OR RETROACTIVELY

Generally, legislatures have the power to repeal legislation and are not bound by the acts

of prior legislatures, so long as existing contractual obligations are not impaired. See, e.g.,

Studier, 472 Mich at 660; LeRoux v Secretary of State, 465 Mich 594, 615-616; 640 NW2d 849

(2002). See also Atlas v Wayne Co Board of Auditors, 281 Mich 596, 599; 275 NW 507 (1937)

(“The power to amend and repeal legislation as well as to enact it is vested in the legislature, and

the legislature cannot restrict or limit its right to exercise the power of legislation by prescribing

modes of procedure for the repeal or amendment of statutes; nor may one legislature restrict or

limit the power of its successors”). The principle that one legislature cannot bind a succeeding

legislature is thus derived from the constitutional power of the Legislature to legislate. Const

1963, art 4, § 1. As discussed earlier, no contract was created by enactment of the Compact

provisions. Thus, the Legislature’s constitutional right to change, amend or repeal the law could

not be restricted by enactment of 1969 PA 343. Studier, 472 Mich at 660. Therefore, the

-14- Legislature, by enacting PA 282 to correct its drafting error contained in 2007 PA 36, acted

within the scope of its legislative powers as vested in it by the Michigan Constitution.

Moreover, correcting the drafting errors from 2007 PA 36 by repeal of the Compact

provisions through PA 282 is consistent with the intent of the Legislature in enacting 1969 PA

353. This is evidenced by the language of Article X of the Compact:

Any party state may withdraw from this compact by enacting a statute repealing the same. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal. [MCL 205.581, Art X(2).]

“When interpreting a statute, courts must ascertain the legislative intent that may reasonably be

inferred from the words expressed in the statute.” Andrie Inc v Dep’t of Treasury, 496 Mich 161,

167; 853 NW2d 310 (2014) (quotation marks omitted). This requires the Court to consider “the

plain meaning of the critical word or phrase as well as its placement and purpose in the statutory

scheme.” Id. (citations and quotation marks omitted).

It is clear from the language of Article X(2) that in 1969 the Legislature contemplated the

possibility of future withdrawal from the Compact. Withdrawal from the Compact provisions by

PA 282 is therefore consistent with the Legislature’s intent. The Court rejects any argument that

under Article X(2) repeal of the Compact can be prospective only. As made clear by the

enacting provisions of PA 282, the repeal of the Compact provisions was intended to apply

prospectively from January 1, 2008. Because it is this Court’s duty to carry out the intent of the

Legislature, repeal of the Compact provisions by PA 282 must be given effect.

-15- D. CONCLUSION

The Court concludes that the Compact did not create a binding contract with Member

States, but it was merely an advisory compact. Because no contract was created under federal

Compact or Michigan law, there was no impairment of contractual obligations and therefore no

violations of the Contracts Clauses of the federal or state constitutions. Finally, inasmuch as

there is no impairment of contractual obligations, the Legislature was free to amend or repeal

1969 PA 343. Thus this Court must give effect to and apply the intent of PA 282 as a valid

expression of the Legislature’s sovereign and constitutional authority to legislate.

II. THE RETROACTIVE APPLICATION OF PA 282 DOES NOT VIOLATE OTHER PROVISIONS OF THE STATE OR FEDERAL CONSTITUTIONS

Other constitutional arguments against the retroactive application of PA 282 concern due

process, separation of powers, the Commerce Clause, and the First Amendment’s right to

petition. 15 These arguments have no merit.

It is well settled that a tax act is not necessarily unconstitutional because it is retroactive.

Welch v Henry, 305 US 134, 147; 59 S Ct 121; 83 L Ed 87 (1938). A statute is presumed

constitutional unless there is a clear showing to the contrary. Ammex, Inc v Dep’t of Treasury,

273 Mich App 623, 635; 732 NW 2d 116 (2007); Gen Motors Corp v Dep’t of Treasury, 290

15 Contracts Clause arguments are relevant in the context of whether a contract that was allegedly entered into vis-à-vis the adoption of the Compact, and for reasons discussed earlier, must fail. As to whether the retroactive application of a tax statute would generally implicate the Contracts Clauses of the Michigan or United States Constitutions, taxes are not considered contractual in nature, but are instead statutory. Welch v Henry, 305 US 134, 146; 59 S Ct 121; 83 L Ed 87 (1938). Any further discussion of whether PA 282 violates the Contracts Clauses is unnecessary.

-16- Mich App 355, 369; 803 NW 2d 698 (2010). In addition, a taxing statute must be shown to

“clearly and palpably violate the fundamental law before it will be declared unconstitutional.”

Ammex, 273 Mich App at 635-636 (citation and internal quotation marks omitted). For the

following reasons, the presumption that PA 282 is constitutional remains intact.

A. RETROACTIVE APPLICATION OF PA 382 DOES NOT VIOLATE DUE PROCESS

PA 282’s retroactive application does not violate due process of law. First, taxpayers

have no vested interests in tax laws, and therefore no valid claim that an interest in “life, liberty,

or property” has been deprived by retroactive application of PA 282. Second, the Legislature

had a legitimate purpose for giving retroactive effect to PA 282. And third, the period of

retroactivity of PA 282 is rationally related to that purpose.

1. Taxpayers have No Vested Interests

“The due process clauses of the United States and Michigan Constitutions apply when

government actions deprive a person of a liberty or property interest.” Edmond v Dep’t of

Corrections, 143 Mich App 527, 533; 373 NW2d 168 (1985). To determine whether the Due

Process Clause applies, courts look to the nature of the interest at stake. Id. A property interest

must be a vested right to be protected under due process. Detroit v Walker, 445 Mich 682, 698-

699; 520 NW2d 135 (1994).

In United States v Carlton, 512 US 26; 114 S Ct 2018; 129 L Ed 2d 222 (1994), the

Supreme Court specifically rejected the argument that the taxpayer had a viable vested right in

tax legislation. Id. at 33. It explained that “[t]ax legislation is not a promise, and a taxpayer has

no vested right in the Internal Revenue Code.” Id. The Michigan Court of Appeals has also

made clear that a taxpayer “does not have a vested right in a tax statute or in the continuance of -17- any tax law.” Gen Motors Corp, 290 Mich App at 371. See also Walker, 445 Mich at 703;

GMAC v Treasury Dep’t, 286 Mich App 365, 377-378; 781 NW2d 310 (2009). Similarly, no

taxpayer has a vested right in a tax refund based on the continuation of the Compact election

provisions, and any due process claim must fail.

2. The Legislature had a Legitimate Purpose for Giving Retroactive Effect to PA 282

Not only are taxpayers’ rights not vested here, but there are no substantive due process

violations implicated by the retroactive application of PA 282. The test for determining whether

due process has been violated by retroactive tax legislation was set forth by the Supreme Court in

Carlton, 512 US 26. Under Carlton, a statute’s retroactive application satisfies due process if:

(1) it is supported by a legitimate legislative purpose, and (2) it is rationally related to that

legislative purpose. Carlton, 512 US at 30.

In enacting PA 282 and giving it retroactive effect, the Legislature had a legitimate

purpose: to protect state revenues. The potential ramifications of not giving retroactive effect to

PA 282 were made clear in the Senate Fiscal Agency’s legislative analysis of SB 156: 16

The first enacting section of the bill would retroactively repeal the State’s enactment of the Multistate Tax Compact, effective January 1, 2008. As a result, taxpayers filing under the MBT would not be allowed to use alternative apportionment calculations provided under the Compact when computing a

16 Although legislative bill analyses are not official statements of legislative intent, they nonetheless can have probative value. See, e.g., North Ottawa Community Hosp v Kieft, 457 Mich 394, 406 n 12; 578 NW2d 267 (1998); Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 27- 29; 576 NW2d 641 (1998); People v Grant, 455 Mich 221, 240-241; 565 NW2d 389 (1997); Travis v Dreis & Krump Mfg Co, 453 Mich 149, 164-166, 551 NW2d 132 (1996) (opinion by BOYLE, J.).

-18- Michigan tax base. While the Department of Treasury has not allowed taxpayers to use these alternative calculations, the Michigan Supreme Court’s recent decision in IBM Corp. v Department of Treasury may enable certain taxpayers to use these calculations, and the Department estimates that approximately $1.1 billion in refunds would be paid as a result. Because MBT revenue is directed to the General Fund, these refunds would reduce General Fund revenue, and the bill would prevent a reduction in General Fund revenue of $1.1 billion. [Senate Legislative Analysis, SB 156, September 10, 2014, p 5. (Emphasis added.)]

Furthermore, as was recognized by the Court in Gen Motors, 290 Mich App at 373, a

legislature’s purpose to “mend a leak in the public treasury or tax revenue” is legitimate. See

also Carlton, 512 US at 32 (finding a legitimate governmental purpose where the Internal

Revenue Code was retroactively amended for purposes of correcting a legislative error that

would have “created a significant and unanticipated revenue loss.”)

Here, PA 282 served the legitimate governmental purpose of fixing a legislative error and

preventing the potential loss of over $1 billion of MBT revenues in the form of tax refunds from

overpayments.

3. Retroactive Application of PA 282 is a Rational Means of Furthering this Legitimate Purpose

In addition to having a legitimate legislative purpose of preventing a catastrophic fiscal

shortfall, the retroactive application of PA 282 is also a rational means of furthering this

legitimate purpose. In Gen Motors, 290 Mich App at 375, the Court of Appeals found that

whether a retroactive tax law met the rational means prong of Carlton includes a consideration of

whether the retroactive period is “modest” as tested against the “totality of circumstances.” In

determining that a five-year look back period was a rational means of accomplishing the

prevention of revenue loss, the Court looked to whether (1) the retroactive amendment created a

“wholly new tax,” (2) the taxpayer acted in reliance on an expectation its activity would not be

-19- taxed, (3) how promptly the Legislature acted to correct the problem leading to loss in revenue,

and (4) the period of time to which the amendment retrospectively applies.

Applying the “totality of circumstances” here, the retroactive application of PA 282 does

not exceed the modest limitation of the Due Process Clause and is a rational means of

accomplishing the Legislature’s purpose of stemming revenue losses.

First, PA 282 does not reach back in time to assess a “wholly new tax” on long-

concluded transactions, but rather it confirmed that single-factor apportionment under the MBT

was mandatory and that an election to use a three-factor apportionment formula could not be

made.

Second, as a matter of law, there can be no valid claim that an MBT taxpayer acted in

reliance on an expectation that for the MBT its income would be apportioned by the three-factor

apportionment provision. As the Supreme Court recognized in Moorman, 437 US 267, the states

have wide latitude in the selection of an apportionment methodology. Moreover, it is also well

established that a taxpayer does not have a vested right in a tax statute or in the continuance of

any tax law. Walker, 445 Mich at 703; Ludka v Dep’t of Treasury, 155 Mich App 250; 399

NW2d 490 (1986). And as Carlton, 512 US at 33, made clear, even where a taxpayer has

detrimentally relied on a tax statute, this does not result in a constitutional violation:

Although Carlton’s reliance is uncontested—and the reading of the original statute on which he relied appears to have been correct—his reliance alone is insufficient to establish a constitutional violation. Tax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code. [Emphasis added.]

Because taxpayers do not, as a matter of law, have a reliance interest in any particular

apportionment formula a state chooses in dividing the income of multistate taxpayer, this Court

-20- rejects any assertion that a taxpayer would have changed its behavior or structured its affairs

differently had it known that the Compact’s elective provision was no longer available.

Third, the Legislature acted promptly in correcting its error. Not until July 14, 2014,

when the Court decided IBM, was it made clear to the Legislature that 2007 PA 36 was

defective. SB 156, H-1, which added the retroactive repeal of the Compact, provisions, was

introduced on September 9, 2014, and was enacted into law on September 11, 2014.

Fourth, the period of time to which the amendment applies was modest, particularly in

light of the time frames of other retroactive legislation that Michigan courts and those of other

jurisdictions have held were within the modesty limits of the Due Process Clause. For example,

in Gen Motors, 290 Mich App 355, the Court concluded that a five-year retroactive period

(eleven years as applied to the specific taxpayer’s tax years) was modest. In GMAC, 286 Mich

App 365, the Court upheld a law with a seven-year retroactive period. See also Enterprise

Leasing Co v Arizona Dep’t of Revenue, 221 Ariz 123; 211 P3d 1 (Ariz Ct App, 2008) (six year

period); King v Campbell Co, 217 SW3d 862 (Ky Ct App, 2006) (upholding 2005 legislation that

denied refunds of taxes overpaid since 1986 under 2004 judicial decision); Miller v Johnson

Controls, Inc, 296 SW3d 392 (Ky, 2009) (upholding 2000 legislation retroactively ratifying 1988

tax-agency policy that a 1994 judicial decision overruled); Zaber v City of Dubuque, 789 NW2d

634 (Iowa, 2010) (five-and-one-half years); Licari v Comm’r, 946 F2d 690 (CA 9, 1991) (four

years); Tate & Lyle, Inc v Comm’r of Internal Revenue, 87 F3d 99 (CA 3, 1996) (six years);

Montana Rail Link, Inc v United States, 76 F3d 991 (CA 9, 1996) (four years).

-21- All of these factors lead to the conclusion that the Legislature’s means of stemming the

loss of revenues, by giving retroactive effect to PA 282, was a rational means of furthering a

legitimate governmental purpose.

B. RETROACTIVE APPLICATION OF PA 282 DOES NOT VIOLATE PRINCIPLES OF SEPARATION OF POWERS

In addition to being a rational means of achieving a legitimate purpose, PA 282 does not

violate the principle of separation of powers under the Michigan Constitution. The Separation of

Powers Clause is set forth in Const 1963, art 3, § 2:

The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.17

With respect to retroactive legislation, the Legislature is permitted to retroactively change

legislation, so long as it does not “not reverse a judicial decision or repeal a final judgment.”

GMAC, 286 Mich App at 380; Romein v Gen Motors Corp, 436 Mich 515, 536-537; 462 NW2d

555 (1990), aff’d 503 US 181; 112 S Ct 1105; 117 L Ed 2d 328 (1992). See also Wylie v City

Comm’n of Grand Rapids, 293 Mich 571; 292 NW 668 (1940). Furthermore, a legislature is

17 As expressly provided in the Constitution, the legislative power is vested in a senate and a house of representatives, Const 1963, art 4, § l; the executive power is vested in the governor, Const 1963, art 5, § l Sec. 1; and the judicial power is vested exclusively in the courts, Const 1963, art 6, § 1. Pursuant to these powers, it is the legislature’s duty to state what the law is, it is the judiciary’s role to interpret this law, and it is and it is the executive branch’s obligation to enforce the law as written and as interpreted by the judiciary. 1 Official Record, Constitutional Convention 1961, pp 601-602 (“[H]e who makes a law shall not enforce it, nor sit in judgment upon it; that he who enforces a law shall not make or change it nor shall he judge of its violation; and he who sits in judgment shall have neither made the law nor enforced it.”)

-22- entitled to correct its own mistakes though retroactive legislation. See Gen Motors, 290 Mich

App at 373.

By enacting PA 282, the Legislature acted within its authority to legislate by correcting a

mistake made clear to it by the Court in IBM. PA 282 did not purport to overturn the IBM

decision, nor did it repeal the final judgment as it applied to the plaintiff. The Court’s holding in

IBM was limited to a finding that there was no implicit repeal of the Compact apportionment

provisions through enactment of 2007 PA 36, and PA 282 does not conflict with or disturb this

ruling. Through enactment of PA 282, the Legislature took steps to retroactively repeal the

Compact provisions explicitly, clarifying its original intent in enacting the MBT. Such action did

not impinge upon the judiciary’s functions in violation of the separations of powers.

Although IBM left unresolved the issue of whether the retroactive repeal of the Compact

provisions would be constitutional, both the majority and the concurring opinions suggest that an

explicit, retroactive repeal of the Compact provisions, effective January 1, 2008, could have led

to a different result. 18 Rather than deviating from the Court’s opinion, PA 282’s explicit,

retroactive repeal of the Compact provisions is consistent with the language in IBM suggesting

that retroactive repeal would be an appropriate legislative response to the challenges being made.

18 Discussing 2011 PA 40, which retroactively repealed the Compact apportionment provisions effective January 1, 2011, the majority stated that “[t]here is no dispute that the Legislature specifically intended to retroactively repeal the Compact’s election provision for taxpayers subject to the [MBT] beginning January 1, 2011. The Legislature could have—but did not— extend this retroactive repeal to the start date of the [MBT].” IBM, 496 Mich at 659. (Emphasis added.) See also concurring opinion of Justice Zahra, noting that “the [MBT’s] exclusive apportionment method remains in conflict with the election provision of the Compact. This conflict, in my view, is easily resolved because the Legislature in 2011 also expressly supplemented the Compact.” Id. at 669. (Emphasis added.)

-23- The Legislature did not violate the separation of powers doctrine when it passed the retroactive

amendments under PA 282.

C. PA 282 DOES NOT VIOLATE THE COMMERCE CLAUSE

PA 282 does not violate the Commerce Clause 19, which prohibits state laws that (1)

facially discriminate against interstate commerce, (2) have a discriminatory effect, or (3) are

enacted for a discriminatory purpose. Caterpillar Inc v Dep’t of Treasury, 440 Mich 400, 422-

425; 488 NW2d 182 (1992). Under the dormant Commerce Clause, states may not discriminate

against interstate commerce by “unduly burden[ing] interstate commerce.” Quill Corp v North

Dakota, 504 US 298, 312; 112 S Ct 1904; 119 L Ed 2d 291 (1992) (citations omitted). PA 282

neither discriminates against, nor unduly burdens, interstate commerce.

First, PA 282 is not facially discriminatory. Facial discrimination requires an “explicit

discriminatory design to the tax.” Amerada Hess Corp v Dir, 490 US 66, 75; 109 S Ct 1617; 104

L Ed 2d 58 (1989). The text of PA 282 makes clear, on its face, that no taxpayer, regardless of

location, can elect the three-factor apportionment.

Second, PA 282 has no discriminatory effect. The effect of PA 282 is that no taxpayer,

whether in-state or out-of-state, can make an election to apply a three-factor apportionment for

MBT purposes. As the United States Supreme Court made clear in Moorman, 437 US 267,

requiring a single-factor apportionment formula does not have the effect of discriminating

against an out-of-state taxpayer.

19 US Const, art I, § 8, cl 3.

-24- In addition, PA 282 was not enacted for a discriminatory purpose, but rather sought to

clarify the original intent of the 2007 Legislature with respect to all taxpayers, both in-state and

out-of-state. Any claims made that PA 282 violates the Commerce Clause of the United States

Constitution must therefore fail.

D. PA 282 DOES NOT VIOLATE THE FIRST AMENDMENT PETITION CLAUSE

Neither does PA 282, by retroactively revoking taxpayers’ right to petition the

Department and appeal to a court for a refund of tax, violate their First Amendment right to

petition the government.

The right of citizens to petition the government for redress of grievances is specifically

guaranteed by the United States and Michigan Constitutions. US Const Amend I; Const 1963,

art 1, § 3. This right is not unlimited, however, and “may be circumscribed to the extent

necessary to achieve a valid state objective.” Jackson Co Ed Ass’n v Grass Lake Community Sch

Bd of Ed, 95 Mich App 635, 641-642; 291 NW2d 53 (1979).

The Supreme Court has long made clear that the First Amendment does not require the

government to listen to individuals or to respond to individual grievances. In Bi-Metallic

Investment Co v State Bd of Equalization, 239 US 441; 36 S Ct 141; 60 L Ed 372 (1915), the

Court responded to a real estate owner’s argument that it had no opportunity to be heard in

opposition to a legislative tax valuation increase by stating:

Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. Generally statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. [Id. at 445 (emphasis added).] -25- See also Smith v Arkansas State Highway Employees, Local 1315, 441 US 463, 464-465; 99 S Ct

1826; 60 L Ed 2d 360 (1979) (finding that the Arkansas Highway Commission did not have an

affirmative obligation under the First Amendment “to listen, to respond or, in this context, to

recognize the association and bargain with it.”)

The Supreme Court’s analysis in Bi-Metallic Investment applies here. There is no merit

to any argument that the retroactive application of PA 282 violates a taxpayers’s First

Amendment right to petition the government. Taxpayers’ First Amendment rights on matters of

tax legislation—whether prospective or retroactive—are properly protected by taxpayers’ power

over those who “make the rule[s]”—that is, the Legislature. Bi-Metallic Investment, 239 US at

445. While the Court has an obligation, within jurisdictional limits, to respond to taxpayers’

grievances with respect to individual overpayments of tax, it is under no constitutional obligation

under the First Amendment to answer to taxpayers about general validity of the legislation itself.

Thus application of PA 282 does not violate a taxpayer’s First Amendment rights.

Moreover, to the extent that PA 282 may impact taxpayers’ procedural rights of

petitioning the court for a refund of tax, these rights are properly safeguarded under rights of due

process, which “affirmatively require[s] the government to provide meaningful procedural

opportunities in response to judicial petitions, far and above any required by the First

Amendment standing alone.” Andrews, A Right of Access to Court Under the Petition Clause of

the First Amendment: Defining the Right, 60 Ohio St L J 557, 634 (1999). And as the Court has

already discussed, plaintiff’s constitutional rights of due process have been satisfied with respect

to the application of PA 282.

-26- III. THERE WERE NO PROCEDURAL VIOLATIONS THAT BAR APPLICATION OF PA 282

A. THE TITLE-OBJECT CLAUSE OF THE MICHIGAN CONSTITUTION WAS NOT VIOLATED PA 282 satisfies the Title-Object Clause of the Michigan Constitution. This clause states:

No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title. [Const 1963, art 4, § 24.]

PA 282 is titled as follows:

AN ACT to amend 2007 PA 36, entitled “An act to meet deficiencies in state funds by providing for the imposition, levy, computation, collection, assessment, reporting, payment, and enforcement of taxes on certain commercial, business, and financial activities; to prescribe the powers and duties of public officers and state departments; to provide for the inspection of certain taxpayer records; to provide for interest and penalties; to provide exemptions, credits, and refunds; to provide for the disposition of funds; to provide for the interrelation of this act with other acts; and to make appropriations,” by amending sections 111, 305, 403, and 433 (MCL 208.1111, 208.1305, 208.1403, and 208.1433), sections 111 and 305 as amended by 2012 PA 605, section 403 as amended by 2008 PA 434, and section 433 as amended by 2007 PA 215, and by adding section 508; and to repeal acts and parts of acts.

The three different challenges that may be brought against a statute on the basis of the

Title-Object Clause are: (1) a multiple-object challenge, (2) a title-body challenge, and (3) a

change of purpose challenge. Ray Twp v B & BS Gun Club, 226 Mich App 724, 728; 575 NW2d

63 (1997); HJ Tucker & Assoc, Inc v Allied Chucker & Engineering Co, 234 Mich App 550,

556-557; 595 NW2d 176 (1999). In assessing the validity of these challenges, the constitutional

requirements under the Title-Object clause are to be construed reasonably. Mooahesh v Dep’t of

Treasury, 195 Mich App 551, 563; 492 NW2d 246 (1992). See also Gen Motors Corp, 290

Mich App at 388.

-27- 1. Multiple-Object Challenge

With respect to the multiple-object challenge, the body of the law, as well as its title,

must be examined to determine whether the act embraces more than one object or purpose. Ray

Twp, 226 Mich App at 731. The object of the legislation must be determined by examining the

law as enacted, not as originally introduced. People v Kevorkian, 447 Mich 436, 456; 527

NW2d 714 (1994). A bill that is enacted into law may include all matters germane to its object,

as well as all provisions that directly relate to, carry out, and implement the principal object.

City of Livonia v Dep’t of Social Servs, 423 Mich 466, 497; 378 NW2d 402 (1985). “The

purpose of the single-object rule is to avoid bringing into one bill diverse subjects that have no

necessary connection.” Mooahesh, 195 Mich App at 564.

In determining whether PA 282 violated the single object rule, Mooahesh is instructive.

Mooahesh involved a title-object challenge to 1988 PA 136, which (1) amended the Individual

Income Tax Act to provide that lottery winnings are taxable, and (2) repealed a section from the

Lottery Act that had previously exempted lottery winnings from taxation. 20 The Court first

determined that the general purpose of the act as found in the title (“to meet deficiencies in state

20 The title of 1988 PA 516 provided, in pertinent part:

An act to amend sections . . . of the Public Acts of 1967, entitled “An act to meet deficiencies in state funds by providing for the imposition, levy, computation, collection, assessment, and enforcement by lien and otherwise of taxes on or measured by net income; to prescribe the manner and time of making reports and paying the taxes, and the functions of public officers and others as to the taxes; to permit the inspection of the records of taxpayers; to provide for interest and penalties on unpaid taxes; to provide exemptions, credits and refunds of the taxes; to prescribe penalties for the violation of this act; to provide an appropriation; and to repeal certain acts and parts of acts. . . .” [Emphasis added.]

-28- funds”) was to raise revenues, and that “[a] statute may authorize the doing of all things that are

in furtherance of the general purpose of act without violating the one-object limitation of art 4, §

24.” Mooahesh, 195 Mich App at 564 (emphasis added). It further stated that “[t]he object of

‘meet[ing] deficiencies in state funds’ may reasonably be found to include the repeal of a tax

exemption, even if that exemption does not appear in any act specifically devoted to taxation.”

Mooahesh, 195 Mich App at 566. In addition, acknowledging that “it might have been ‘better

draftsmanship,’ to have provided for a separate amendment to the Lottery Act,” the Court

determined that “the inclusion of the repeal of the tax exemption provision in an act amending

the income tax laws does not render the act in violation of the single-object requirement.” Id.

(internal citations omitted.)

Just as the statute considered in Mooahesh had as its general purpose the raising of

revenues, so too was the general purpose of PA 282. And just as it might have been “better

draftsmanship” to have provided for a separate amendment repealing § 34 of the Lottery Act, the

Legislature in enacting PA 282 might have been better advised to repeal the Compact provisions

in a separate act. But like the choice to amend the ITA and repeal a section of the Lottery Act in

one act, the choice to include the repeal of the Compact and amend the MBT in one act is not a

violation of the single-object requirement. 21

21 As repeated by the Court in Mooahesh, 195 Mich App at 564:

There is . . . no constitutional requirement that the legislature do a tidy job in legislating. It is perfectly free to enact bits and pieces of legislation in separate acts or to tack them on to existing statutes even though some persons might think that the bits and pieces belong in a particular general statute covering the matter. The constitutional requirement is satisfied if the bits and pieces so enacted are embraced in the object expressed in the title of the amendatory act and the act

-29- 2. Title-Body Challenge

With respect to a title-body challenge, the title of an act must express the general purpose

or object of the act. Ray Twp, 226 Mich App at 728. “ ‘[T]he title need not serve as an index of

all that the act contains.’ ” Midland Twp v Mich State Boundary Comm’n, 401 Mich 641, 653;

259 NW 2d 326 (1977) (quoting People v Milton, 393 Mich 234, 246-247; 224 NW2d 266

(1974)). It is sufficient if the title “ ‘is a descriptive caption, directing attention to the subject

matter which follows . . . or if it be expressive of the purpose and scope of the enactment.’ ”

Mooahesh, 195 Mich App at 556-557, quoting People ex rel Wayne Prosecuting Atty v Sill, 310

Mich 570, 574; 17 NW2d 756 (1945). The test under a title-body challenge is whether the title

“gives fair notice to the legislators and the public of the challenged provision.” H J Tucker &

Assocs, 234 Mich App at 559. “The notice aspect is violated where the subjects are so diverse in

nature that they have no necessary connection.” Mooahesh, 195 Mich App at 569.

Here, as discussed earlier, the Legislature’s broad purpose of PA 282 was to raise

revenue through the imposition of tax. The title adequately expressed this object and gave notice

of this general purpose. To withstand scrutiny under Const 1963, art 4, § 24, it was not

necessary for the Legislature to provide in the title “an index of all that the act contains,”

Midland Twp, 401 Mich at 653. In addition, the subjects within the title all had a nexus to the

purpose of raising revenue and were not “so diverse in nature that they [had] no necessary

connection” to this purpose. Mooahesh, 195 Mich App at 569. There was no violation of the

title-body rule under PA 282.

being amended. [Id. quoting Detroit Bd of Street R Comm’rs v Wayne Co, 18 Mich App 614, 622-623; 171 NW2d 669 (1969).]

-30- 3. Change-of-Purpose Challenge

Finally, a change of purpose challenge to PA 282 on the ground that its purpose changed

during passage through the Legislature, is tested as to whether “the change represents an

amendment or extension of the basic purpose of the original, or the introduction of entirely new

and different subject matter.” Anderson v Oakland Co Clerk, 419 Mich 313, 328; 353 NW2d

448 (1984) (LEVIN, J., concurring) (internal quotation marks omitted). See also Kevorkian, 447

Mich at 461 (“[T]he test for determining if an amendment or substitute changes a purpose of the

bill is whether the subject matter of the amendment or substitute is germane to the original

purpose.”)

Here, as discussed earlier, the general purpose of SB 156 as originally introduced was to

raise revenues. This original purpose of SB 156 did not change under Substitute H-1, as

introduced and later enrolled as PA 282.

As originally introduced, SB 156 amended the MBT by (1) allowing an adjustment to the

modified gross receipts tax base for amounts attributable to the taxpayer pursuant to a discharge

of indebtedness, (2) revising the calculation of the investment credit with respect to the recapture

of revenue when property previously subject to the credit is sold, (3) revising the calculation of

the credit for a taxpayer located and conducting business in a renaissance zone before December

1, 2002, and, (4) revising a provision concerning a dock sale, for purposes of apportionment.

See Senate Legislative Analysis, SB 156, March 19, 2013. The original bill stated that the act

was “curative and intended to clarify the original intent of the Legislature.” Id. Substitute H-1,

as enrolled as PA 282, retained the original proposed amendments, and added, in pertinent part,

(1) a requirement that a taxpayer claim a refund in 2015 if as a result of the amendments, there

-31- was an overpayment for a tax year between 2010 and 2014, and (2) a provision that the bill

would retroactively repeal the Compact provisions under Public Act 343 of 1969 to January 1,

2008, and express legislative intent regarding the single-factor apportionment formula and the

elimination of the Compact’s election provision. See Senate Legislative Analysis, SB 156,

September 10, 2014.

Substitute H-1, as enrolled as PA 282, was “an extension of the basic purpose of the

original,” rather than “the introduction of the entirely new and different subject matter” that

would otherwise violate the change-of-purpose rule. Anderson, 419 Mich at 327. The general

purpose of both the bill as originally enacted, and substitute H-1, as enrolled as PA 282, was also

to raise revenues. Because the general purpose of the bills did not change or introduce new and

different subject matter, a change-in-purpose challenge to PA 282 must fail.

In conclusion, given the presumption that PA 282 is constitutional, and in light of the fact

that the Title-Object Clause is to be liberally construed, the Court concludes that PA 282 does

not violate the Title-Object Clause of the Constitution.

B. THE “FIVE-DAY RULE” UNDER THE MICHIGAN CONSTITUTION WAS NOT VIOLATED

The issue whether PA 282 violates the Title-Object Clause is integrally related to the

“five-day rule” of art 4, § 26 of Const 1963 which states, in pertinent part, that no bill can be

-32- passed until it has been printed or reproduced and in the possession of each house for at least five

days. 22 This rule was not violated by passage of PA 282.

Whether the five-day rule has been violated depends on whether (1) the bill was in the

possession of both houses for five days, and (2) whether there has been a change in purpose.

Anderson, 419 Mich at 339 (LEVIN, J., concurring). Here, SB 156 was before both the House

and Senate for at least 5 days. 23 And as discussed earlier, SB 156 as finally passed served the

original bill’s general purpose of raising revenues. The Court therefore concludes that enactment

of PA 282 did not violate Const 1963, art 4, § 26.

C. THE TAX-TITLE CLAUSE OF THE MICHIGAN CONSTITUTION WAS NOT VIOLATED

PA 282 does not violate the “tax-title” clause of art 4, § 32 of the Michigan Constitution.

That provision, also known as the “distinct-statement” clause, requires that “[e]very law which

imposes, continues or revises a tax shall distinctly state the tax.” Id. The purpose of this clause

is “ ‘to prevent the Legislature from being deceived in regard to any measure for levying taxes,

and from furnishing money that might by some indirection be used for objects not approved by

the Legislature.’ ” Dawson v Sec of State, 274 Mich App 723, 747; 739 NW2d 339 (2007).

(Citation omitted.)

22 As explained by the Court in Anderson, 419 Mich at 329-330, “The five-day rule and the change of purpose provision were contained in the same article and section of the Constitution of 1908. Const 1908, art 5, § 22. It is clear that the function of the change of purpose provision, both in the Constitution of 1908 and as modified in the Constitution of 1963, is to fulfill the command of the five-day rule.” 23 See 2013 Senate Journal 9; 2014 Senate Journal 61.

-33- Both the title and the body of PA 282 make clear that the act related distinctly to tax, and

there is no language within SB 156, enrolled as PA 282, that would have caused the Legislature

to be “deceived in regard to any measure for levying taxes.” Dawson, 274 Mich App at 747.

There is no merit to any claim that PA 282 violates Const 1963, art 4, § 32.

IV. CONCLUSION

The passage of PA 282 is a valid, constitutional act by the Legislature that provided

clarity to taxpayers as to the original intent of the MBT Act. 24 It also prevented the significant

fiscal harm to the state that would have resulted if taxpayers had been permitted to elect

apportionment provisions under the Compact. The Legislature’s choice in PA 282 to

retroactively repeal the Compact provisions was within the boundaries of the Michigan and

United States Constitutions and stayed true to the Legislature’s original intent to require single-

factor apportionment under the MBT Act. Application of PA 282 to the disposition of this case,

and others like it, is appropriate; 25 failure to do so would otherwise provide taxpayers with a

windfall that the Legislature did not mean to provide. See Hochman, The Supreme Court and the

Constitutionality of Retroactive Legislation, 73 Harv L Rev 692, 705 (1960).

24 PA 282 also clarified that the Compact’s election provision is not available under the Income Tax Act, MCL 206.1, et seq. 25 Similar claims brought under the Income Tax Act, MCL 206.1, et seq., would likewise fail; PA 282 would apply and negate the basis for the plaintiff's claim.

-34- IT IS HEREBY ORDERED that plaintiff’s motion for summary disposition is DENIED,

and summary disposition is GRANTED in favor of the Department pursuant to MCR

2.116(I)(2).

This order resolves the last pending claim and closes the case.

Dated: December 19, 2014 ________________________________ Hon. Michael J. Talbot Chief Judge, Court of Claims

-35- E STATE OF MINNESOTA TAX COURT

COUNTY OF RAMSEY REGULAR DIVISION

Kimberly-Clark Corporation & Subsidiaries, ORDER GRANTING THE COMMISSIONER'S MOTION Appellants, FOR SUMMARY JUDGMENT

vs. File No. 8670-R

Commissioner of Revenue, Filed: June 19, 2015

Appellee.

This matter came before the Minnesota Tax Court, sitting en bane, on the parties' cross-

motions for summary judgment.

Walter A. Pickhardt, Faegre Baker Daniels LLP, Minneapolis, Minnesota, and AmyL.

Silverstein and Edwin P. Anto lin, Silverstein & Pomerantz LLP, San Francisco, California,

represent appellants Kimberly-Clark Corporation and its subsidiaries.

Alan I. Gilbert, Minnesota Solicitor General, and Alethea M. Huyser, Assistant Minnesota

Attorney General, represent appellee Commissioner of Revenue.

We grant the Commissioner's motion for summary judgment and deny Kimberly-Clark's

motion.

The undersigned judges, upon all the files, records, and proceedings herein, now make the

following:

ORDER

1. The Commissioner's motion for summary judgment is granted.

2. Kimberly-Clark's motion for summary judgment is denied. IT IS SO ORDERED. THIS IS A FINAL ORDER. LET JUDGMENT BE ENTERED

ACCORDINGLY.

BY THE COURT,

~:2,Ju~ MINNESOTA TA.X COURT

DATED: June 19,2015

MEMORANDUM

I. FACTUAL BACKGRO UND

Appellant Kimberly-Clark Corporation and its subsidiaries (collectively Kimberly)

constitute a combined group for purposes ofMinnesota's corporate franchise tax.' Kimberly-Clark

Corporation is the reporting entity for the combined group. 2 Kimberly has done business in

Minnesota since 1958 and bas filed Minnesota tax returns since at least 1983.3 During the tax

years in issue (2007, 2008 and 2009), Kimberly engaged in a unitary, multi-state business.4 This

I Stip. ~~ 1, 4. 2 St. .r ~ lp. II ).

3 Stip. ~ 6. 4 Stip. ~ 9.

2 case concerns the computation of Minnesota corporate franchise tax liability for Kimberly's

unitary business conducted partly within and partly without Minnesota.

Under the unitary-business I formula-apportionment method of deriving local taxable

income, a state combines the total income of a unitary business, then uses an apportionment

formula to allocate to itself a fair share of that combined income for tax purposes. As the United

States Supreme Court has succinctly explained, this approach

rejects geographical or transactional accounting, and instead calculates the local tax base by first defining the scope of the "unitary business" of which the taxed enterprise's activities in the taxing jurisdiction form one part, and then apportioning the total income of that "unitary business" between the taxing jurisdiction and the rest of the world on the basis of a formula taking into account objective measures of the corporation's activities within and without the jurisdiction.

Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 165 (1983). Minnesota uses the

unitary-business I formula-apportionment method to determine a unitary business' local tax base.

See Comm 'r of Revenue v. Associated Dry Goods, Inc., 347 N.W.2d 36, 38 (Minn. 1984); Minn.

Stat. § 290.191, subd. 1(a) (2014) ("[T]he net income from a trade or business carried on partly

within and partly without this state must be apportioned to this state as provided in this section.").

It is undisputed that during the tax years in issue, multistate businesses could: (1) apportion

income to Minnesota using the apportionment formula set forth in Minn. Stat. § 290.191; or (2)

petition the Minnesota Commissioner of Revenue to permit the use of an alternative apportionment

formula. See Minn. Stat. § 290.20, subd. 1 (2014) (providing for such petitions). The dispute in

this case concerns whether, during the tax years in issue, multistate businesses also enjoyed a third

option, namely, the unfettered right to use the apportionment formula contained in Articles III and

IV of Minn. Stat. § 290.171 (Minnesota's version of the Multistate Tax Compact) between 1983

and its repeal in 1987. A proper explication of this dispute requires us to briefly explain the

3 emergence of the Multistate Tax Compact from a controversy over how states tax multistate

businesses.

A. State Taxation of Multistate Businesses

In 1959, the United States Supreme Court held that a state could tax net income fr

interstate operations of a foreign corporation whose only connections to the taxing state were the

solicitation of sales within the state and the maintenance of a modest sales office. Nw. States

Portland Cement Co. v. Minnesota, 358 U.S. 450, 453-57, 472 (1959). Within seven months of

the Supreme Court's decision, Congress passed Public Law No. 86-272, Title II, 73 Stat. 555

(1959), which barred states from imposing an income tax on a business whose only activity in the

state was (1) soliciting orders or (2) using an independent contractor to make sales in the state. 5

Congress also established the Special Subcommittee on State Taxation of Interstate Commerce to

make full and complete studies of all matters pertaining to the taxation by the States of income derived within the States from the conduct of business activities which are exclusively in furtherance of interstate commerce or which are a part of interstate commerce, for the purpose of recommending to the Congress proposed legislation providing uniform standards to be observed by the States in imposing income taxes on income so derived. 6

In 1964, the Special Subcommittee (known as the Willis Committee) issued the first in a

series of reports. 7 The subcommittee characterized the existing system as one "which calls upon

tax administrators to enforce the unenforceable, and the taxpayer to comply with the 8 uncompliable." The subcommittee further found "inescapable" the conclusion "that the

voluntary adoption by the States of any kind of uniform system [for taxing the income ofmultistate

5 See Ex. J51 (H.R. Rep. No. 88-1480 (1964)), at 7-8. 6 Ex. J51, at 8-9; see Pub. L. No. 86-272, Title II, 73 Stat. 555, 556 (1959). 7 Ex. J51. 8 Ex. J51, at 598.

4 9 businesses] is a slow and halting process, if not a virtual impossibility." The subcommittee

recommended that all corporate income be apportioned among the states by a two-factor formula

based on property and payroll attributed to the state, with no provision for state-specific formulas. 10

B. Development and Summary of the Multistate Tax Compact

Following the issuance of the Willis Report, the National Association of Tax

Administrators convened a special meeting in January ~ 966 to both oppose pending federal

legislation and "to suggest workable alternatives which would eliminate the need for the kind of

congressional action embodied in" the federal legislation. 11 The text of the Multistate Tax

Compact was released in December 1966 by the Council of State Governments. 12

Article I of the Compact lists its purposes, including "[t]acilitat[ion of] proper

determination of State and local tax liability of multistate taxpayers" and "[p]romot[ion of]

13 uniformity or competibility [sic, compatibility] in significant components of tax systems."

Article II sets out definitions of various terms used in the Compact, none of which need be

recited here. 14

Articles III and IV are at the center of the parties' dispute. Articles III and IV incorporate,

almost verbatim, the Uniform Division of Income for Tax Purposes Act, a uniform act drafted by

9 Ex. J51, at 133. 10 Ex. 152, at KC1135, KC1144, KC1162 ("[N]o modifications should be permitted which involve the use of specific allocation or of factors other than those based on tangible property and payroll."). 11 Ex. 136, at KC 11434. 12 Ex. 132. 13 Ex. 132, at KC11505. 14 Ex. 132, at KC 11505-06.

5 the National Conference of Commissioners on Uniform State Laws in 1957. 15 Article III, section

1, allows a multistate taxpayer to "elect to apportion and allocate his income in the manner

provided by the laws of such State ... without reference to this compact" or "in accordance with 16 Article IV." Article IV, in turn, provides for the apportionment of income by a three-factor,

equally-weighted formula using sales, payroll, and property:

All business income shall be apportioned to this State by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three. 17

Article IV, sections 10, 13, and 15, define the three factors. 18 Under Article III, section 1, the

taxpayer may elect which apportionment formula to use "without reference to the election made"

in any other state. 19

Article V, section 1, allows a credit against use tax on tangible personal property imposed

in one state for use tax paid to another state with respect to the same property. 20 Article V, section

2 allows a seller to rely on an exemption certificate. 21

Article VI establishes the Multistate Tax Commission, composed of one "member" from

each "party State." 22 Article VI further requires that any action of the Commission be approved

15 See Ex. J35, at KC11530 (explaining the history of the Uniform Division of Income for Tax Purposes Act). 16 Ex. J32, at KC 11506. 17 Ex. J32, at KC11509. 18 Ex. J32, at KC11509-10. 19 Ex. J32, at KC11506. 20 Ex. J32, at KC11510-11. 21 Ex. J32, at KC11511. 22 Ex. J32, at KC11511-12.

6 by a majority of members, requires the Commission to adopt bylaws, establishes the Commission's

governing and financial structure, and enumerates the powers of the Commission. 23

Article VII allows the Commission to "adopt uniform regulations for any phase of the

administration" of income taxes. 24 It requires the Commission to submit such regulations "to the

appropriate officials of all party States and subdivisions to which they might apply" and provides

that each such state "shall consider any such regulation for adoption in accordance with its own

laws and procedures." 25

Article VIII allows any party state to ask the Commission to perform audits on its behalf

and sets procedures for such audits. 26 Article VIII must be specifically adopted by a party state. 27

Article IX provides for arbitration of"disputes concerning apportionments and allocations"

by taxpayers "dissatisfied with the final administrative determination of the tax agency of the

State" and establishes procedures for such arbitrations. 28

Article X, also important to the parties' dispute, provides in section 1 that the Compact

29 "shall enter into force when enacted into law by any seven States." Article X, section 2,

provides:

Any party State may withdraw from this compact by enacting a statute repealing the same. No withdrawal shall affect any liability already incurred by or chargeable to a party State prior to the time of such withdrawal. 30

23 Ex. J32, at KC11511-12. 24 Ex. J32, at KC11514. 25 Ex. J32, at KC11514. 26 Ex. J32, at KC11514-15. 27 Ex. J32, at KC11514. 28 Ex. J32, at KC11516. 29 Ex. J32, at KC11517. 30 Ex. J32, at KC11517.

7 Article XI states that "[n]othing in this compact shall be construed to," among other things,

"[a]ffect the power of any State or subdivision thereof to fix rates of taxation, except that a party

State shall be obligated to implement Article III [section] 2 of this compact." 31 Article III, section

2, allows a taxpayer whose only activity in a state consists of sales, and whose sales do not exceed

$100,000 during the tax year, to "elect to report and pay any tax due on the basis of a percentage"

of sales, and further requires the state to "adopt rates which shall produce a tax which reasonably

approximates the tax otherwise due." 32

Finally, Article XII of the Compact provides that it "shall be liberally construed so as to

effectuate the purposes thereof." 33 It further provides that the provisions of the Compact "shall 34 be severable." If any portion of the Compact is declared unconstitutional, "the compact shall

remain in full force and effect as to the remaining party States and in full force and effect as to the

State affected as to all severable matters." 35

By August 4, 1967, at least nine states (not including Minnesota) had enacted the

Compact. 36

C. Post-Adoption History

In 1972, Florida-one of the first states to adopt the Compact-repealed Articles III

and IV. Act of December 16, 1971, ch. 71-980, § 1, 1971 Fla. Laws 51, 52 (Aff. of Pickhardt

Ex. 1). At the same time, Florida provided by statute for the apportionment of income to Florida

31 Ex. 132, at KC11518. 32 Ex. 132, at KC11506-07. 33 Ex. 132, at KC115l8. 34 Ex. 132, at KC11518. 35 Ex. 132, at KC11518. 36 Ex. 136, at KC11435.

8 based on a three-factor, equally-weighted formula using a "property" factor, a "payroll" factor,

and a "sales" factor. § 2, 1971 Fla. Laws at 52. After these legislative actions, the Multistate Tax

Commission determined that Florida remained "a regular member in good standing of the

Multistate Tax Compact and the Multistate Tax Commission." 37

In August 1972, U.S. Steel Corporation and three other multistate corporations brought suit

on behalf of themselves and all other multi state taxpayers threatened with audits by the Multistate

Tax Commission. See U.S. Steel Corp. v. Multistate Tax Comm 'n, 434 U.S. 452, 458 (1978).

Plaintiffs sought two things: (1) declaratory judgment that the Multistate Tax Compact was invalid

because (among other things), it had never received the consent of Congress under Article I,

section 10, clause 3 of the United States Constitution; and (2) a permanent injunction barring the

operation and enforcement of the Compact. U.S. Steel Corp. v. Multistate Tax Comm 'n, 417 F.

Supp. 795, 797 (S .D .N.Y. 1976). The district court granted the Commission's motion for summary

judgment. Jd at 805.

Plaintiffs appealed to the United States Supreme Court. U.S. Steel, 434 U.S. 452. In its

brief to the Court, the Multistate Tax Commission characterized itself as "only [] an advisory

agency" whose "work product is not binding on anyone," and the Compact as consisting "solely

of uniform laws, an advisory mechanism for the uniform interpretation and application of those

laws, and an advisory mechanism for otherwise developing uniformity and compatibility in state

and local taxation of multistate businesses." 38 In addition, the Commission wrote:

37 Ex. J43, at MDOR 00015. 38 Ex. 154, at MDOR 03904-05, 3909.

9 Under the Compact, the member states administer their own tax laws and do not delegate any of their authority to anyone. Each state, independent of the Compact, has the power to adopt uniform legislation, to audit Appellants' books and records on its individual account, to grant multistate taxpayers certain options in the determination of their tax liability, and to enter into reciprocal joint audit agreements with other states. By adoption of the Compact, each state has retained complete and absolute control over its own tax system. 39

Noting that "[a]ny state is free to join or withdraw from the Compact at will," the Commission

argued that '"there is a serious question as to whether the Compact is an 'agreement or compact"'

within the meaning of the Compact Clause or merely a reciprocal arrangement among the member

states.40

The Supreme Court affirmed the district court, agreeing that the Compact was not invalid

for lack of Congressional approval. U.S. Steel, 434 U.S. at 479. The Supreme Court also

commented, in part:

This pact does not purport to authorize the member States to exercise any powers they could not exercise in its absence. Nor is there any delegation of sovereign power to the Commission; each State retains complete freedom to adopt or reject the rules and regulations of the Commission. Moreover, ... each State is free to withdraw at any time.

Jd at 473.

D. Minnesota's Adoption of the Compact

Against this backdrop, Minnesota enacted the Compact in 1983. Act of June 14, 1983,

ch. 342, art. 16, § 1, 1983 Minn. Laws 2168, 2339-52 (codified as Minn. Stat. § 290.171).

Minnesota did not, however, adopt certain portions of Article IV, specifically, section 4 (allocating

"[r]ents and royalties from real or tangible personal property, capital gains, interest, dividends or

patent or copyright royalties"), section 5 (allocating "[n]et rents and royalties from real property"),

39 Ex. J54, at MDOR 03919-20. 40 Ex. J54, at MDOR 03920-21.

10 section 6 (allocating "[c]apital gains and losses from sales of real property"), section 7 (allocating

"[i]nterest and dividends"), and section 8 (allocating "[p]atent and copyright royalties"). 41

E. Minnesota's Repeal of Articles III and IV

Four years after adopting the Compact, Minnesota amended its version of the Compact to

eliminate Articles III and IV. Act of May 28, 1987, ch. 268, art. 1, § 74, 1987 Minn. Laws 1039,

1098-1112. At the same time, Minnesota amended its equally-weighted three-factor

apportionment formula, placing greater weight on the sales factor and correspondingly lesser

weight on the property and payroll factors. §§ 75, 127, 1987 Minn. Laws 1039, 1112-19, 1156

(codified at Minn. Stat. § 290.191 ). 42 In proposing these changes, the Minnesota Department of

Revenue offered that doing so "would simplify the tax, improve predictability, improve conformity 43 with other states, and transfer tax burdens away from in-state corporations." Nothing in the

Department's proposal, however, addressed the legal effect of repealing only articles III and IV.

Even after repeal of Articles III and IV, Minnesota remained a member in good standing of the

Commission.44 Indeed, Minnesota's then-Commissioner of Revenue was vice-chair and chair of

the Commission in 1988 and 1989, respectively. 45

41 Compare Ex. 144, art. IV, with Minn. Stat.§ 290.171, art. IV (1984). 42 Under Minn. Stat. § 290.191, subd. 2 (1987), as originally enacted, the apportionment formula assigned a weight of 70% to the proportion of the taxpayer's total sales made in Minnesota; a weight of 15% to the proportion of the taxpayer's total tangible property used in Minnesota; and a weight of 15% to the proportion of the taxpayer's total payroll either paid or incurred in Minnesota. See§ 75, 1987 Minn. Laws at 1112-19. Over time, the weight given to sales increased; since 2013, no weight has been given to either the property or the payroll factor. See Minn. Stat. § 290.191, subd. 2(b) (2014) (setting out the percentages to be applied to each of the three factors starting with the 2007 taxable year). 43 Ex. J47, at MDOR 03419. 44 Stip. ~~ 23-24. Huddleston Aff. ~ 11; Ex. J41, at 7 (Twenty-First Annual Report, Multistate Tax 45

Commission).

11 F. Minnesota's Subsequent Withdrawal from the Compact

In 1993, California (which had adopted the Compact and its equally-weighted three-factor

apportionment formula in 1974, see Gillette Co. v. Franchise Tax Bd, 147 Cal. Rptr. 3d 603, 608

(Cal. Ct. App. 2012), review granted and opinion superseded sub nom. Gillette v. Franchise Tax

Bd, 291 PJd 327 (Cal. 2013) (No. S206587) (citing former§ 38001, Cal. Stats. 1974, ch. 93, § 3,

p. 193)), amended its statutory apportionment formula to give double weight to the sales factor,

and made the new apportionment formula mandatory "[n]ot withstanding" the provisions of the

Compact, ld at 610 (citing§ 25128, subd. (a), Cal. Stats. 1993, ch. 946, § 1, p. 5441). In 2010,

the Gillette Company and others sought refunds of California state income taxes totaling about

$34 million, claiming that they could continue to use the Compact's equally-weighted three-factor

apportionment formula. Id at 606-07. The California Franchise Tax Board denied the requested

refunds, but California's intermediate appellate court reversed. !d. at 619. 46

In 2013, the Minnesota Department of Revenue recommended to the Legislature that

Minnesota repeal Minn. Stat. § 290.171 in its entirety, citing the California court's decision in

Gillette. 47 Although the Department indicated its "strong belie[f] that the legislature's repeal of

Articles III and IV of the compact [in 1987] properly eliminated the option to use the Uniform

Law to apportion income," the Department nevertheless recommended repeal of section 290.171

46 Similar cases have been brought by other taxpayers in other states, with varying results. See, e.g., Int'l Bus. Machs. Corp. v. Dep't ofTreasury, 852 N.W.2d 865, 870 (Mich.), reh. denied (Mich. 2014) (concluding that the taxpayer was entitled to use the Compact's three-factor apportionment formula for tax year 2008 because the Michigan Legislature's enactment of the Business Tax Act did not repeal the Compact's apportionment formula, even by implication); Health Net, Inc. v. Dep't ofRevenue, No. TC 5127 (Or. T.C. filed Jan. 17, 2013) (appeal of denial of refund claim pending); Graphic Packaging Corp. v. Combs, No. D-1-GN-12-003038 (Travis Cnty. Dist. Ct. Jan. 15, 2014) (order dismissing without opinion a petition denying claim for refund based on three-factor apportionment formula), appeal granted. 47 Ex. J53, at MDOR 02297.

12 "in its entirety to avoid even the possibility going forward of the State having to pay refunds on

some previously filed returns or lose future tax revenue" if Gillette were affirmed by the California

Supreme Court, and Minnesota courts likewise concluded that Minnesota taxpayers could still use

the Compact's apportionment formula. 48 In 2013, Minnesota repealed section 290.171 in its

entirety. Act of May 23, 2013, ch. 143, art. 13, § 24, 2013 Minn. Laws 2445, 2680. 49

II. PROCEDURAL BACKGROUND

Between 1989 and 2009, Kimberly and its subsidiaries determined their Minnesota taxable

income using the non-equally-weighted apportionment formula found in Minn. Stat. § 290.191,

subd. 2. 50

In April 2013, Kimberly filed amended tax returns and claims for refund for the 2007,

2008, and 2009 tax years, using the equally-weighted formula found in Articles III and IV of the

Compact. 51 According to Kimberly's amended returns, it is entitled to a total refund of $1,205,749

for those three years combined. 52 By order dated October 14, 2013, the Commissioner denied

Kimberly's refund claims. 53

48 Ex. J53, at MDOR 02298. 49 In 2013, Oregon, Utah, and the District of Columbia also eliminated articles 111.1 and IV from their respective statutes. Walter Hellerstein, State Taxation , 9.01 The State Statutory Framework Governing Division of Corporate Income (3rd ed. 20 15). According to the Multistate Tax Commission, by 2013 only ~ix of its members continued to require use of an equally weighted apportionment formula. Ex. J55, at MDOR 03475 & n.23 (Brief of Amicus Curiae Multistate Tax Comm'n filed in Int'l Business Machines Corp. v. Dept. ofTreasury ofState ofMichigan). 50 Stip. , 11; see Exs. J 11-28 (Minnesota corporate franchise tax returns for years 1989- 2006), Ex. J4, at Sch. M4A (2007 Minnesota corporate franchise tax return), Ex. J6, at Sch. M4A (2008 Minnesota corporate franchise tax return), Ex. J8, at Sch. M4A (2009 Minnesota corporate franchise tax return). 51 Stip. ,, 14-15; Ex. J3 (amended return for tax year 2007), Ex. J 5 (amended return for tax year 2008), Ex. J7 (amended return for tax year 2009). 52 Stip. ,, 14-15, 20; see Exs. J3, J5, J7. 53 Stip. , 18; Ex. J2.

13 Kimberly timely appealed the Commissioner's order to this court. 54 Kimberly's notice of

appeal alleged, among other things, that "Minnesota's attempted elimination of Articles III and IV

from the Compact was invalid as a unilateral modification of core provisions of a binding interstate

compact and contract entered into between Minnesota and the other signatory states," and that

"Minnesota's attempted elimination of Articles III and IV from the Compact" violated the

Compact Clause of the United States Constitution and the Contract Clauses of both the United

States and Minnesota Constitutions. 55

Because the notice of appeal raised constitutional issues, the parties jointly moved to refer

those issues to the district court for decision or transfer back to this court and proposed specific

transfer language. 56 See Erie Mining Co. v. Comm 'r of Revenue, 343 N.W.2d 261, 264 (Minn.

1984) (prescribing the procedure for giving the tax court subject matter jurisdiction over

constitutional questions). On September 5, 2014, this court stayed further proceedings in the

appeal and referred the constitutional issues, as framed by the parties, to the Ramsey County

District Court for decision or transfer back to this court. 57 By order dated September 15,2014, the

54 Not. Appeal (filed Dec. 12, 2013). As part of the notice of appeal, Kimberly also appealed "the failure by the Commissioner ofRevenue ... to allow or deny its claim for refund for the tax period ending December 31, 2010." Not. Appeal!; see Minn. Stat.§ 289A.50, subd. 7(d) (2014) (allowing the taxpayer to bring an action in the tax court if the commissioner fails to deny a claim for refund within six months of the filing of the claim). By stipulation filed on March 31, 2014, Kimberly dismissed its claims with respect to tax year 2010, without prejudice to either the right of the Commissioner to audit tax year 2010 or the right of Kimberly to appeal tax year 2010. Stip. Partial Dismissal Without Prejudice (filed March 31, 2014), ~ 7. 55 Not. Appeal~~ 24-25. 56 Joint Mot. Refer Issues Distric~ Ct. (filed Sept. 4, 2014). The parties framed the issue to be referred as follows: "Whether the Minnesota Legislature's repeal of the apportionment formula election codified in 1983 at Minn. Stat. § 290.171 (1983 Supp.) violated the Compact Clause of the United States Constitution and the Contract Clauses of the United States and Minnesota Constitution." Joint Mot. 1. 57 Order (Sept. 5, 2014).

14 Ramsey County District Court transferred the constitutional issues, as framed by the parties, back

to this court for decision. 58

The parties filed their respective motions for summary judgment in October 2014. 59 As

part of their cross-motions for summary judgment, the parties also filed a partial stipulation of

facts and a joint exhibit list. 60 Briefs and supporting affidavits followed. The court heard oral

argument on the parties' motions on March 19, 2015. 61

III. THE PARTIES' PRINCIPAL CONTENTIONS

Kimberly contends that the Compact is a binding contract among party States, 62 which

requires Minnesota, among other things, both: ( 1) to furnish multistate taxpayers with an election

58 Order of Transfer (Sept. 15, 2014). 59 Kimberly's Not. Mot. Mot. Summ. J. (filed Oct. 21, 2014); Comm'r's Not. Mot. Mot. Summ. J. (filed Oct. 28, 2014). 60 Partial Stip. Facts (filed Oct. 21, 2014); Joint Ex. List Stip. Regarding Admissibility of Exhibits (filed Oct. 21, 2014). 61 On April14, 2014, in preparation for a pretrial conference call, this matter was assigned to The Hon. Joanne H. Turner. On April 21, 2014, the Commissioner filed a notice of removal, requesting the removal of Judge Turner. See Minn. R. Civ. P. 63.03 (allowing "[a]ny party or attorney" to file a notice of removal of a judge within 10 days after the party receives notice of the identity of the assigned judge). On April24, 2014, the matter was reassigned to The Hon. Bradford S. Delapena. Order (Apr. 24, 2014). On November 4, 2014, Judge Delapena moved to hear the parties' cross-motions en bane. See Minn. Stat. § 271.04, subd. 1 (2014) ("Upon petition by a party to a case, or upon a motion by a Tax Court judge, and approval by a majority of the Tax Court, a case may be tried before the entire Tax Court."). The motion was approved by unanimous decision. Order En Bane Consideration (Nov. 4, 2014). The Commissioner subsequently objected to en bane consideration on the ground of the previous notice of removal of Judge Turner and requested that the matter be heard by Judge Delapena alone. Appellee Comm'r Revenue's Objection Order En Bane Consideration & Mot. Reset Case (filed Nov. 18, 2018). The court (Judge Turner abstaining) overruled the Commissioner's objections and denied the Commissioner's motion to reassign the matter. Order Overruling Appellee's Objections En Bane Consideration Denying Mot. Re-Assign Case (Jan. 16, 2015). 62 Kimberly's Mem. Supp. Summ. J. 1, 10, 22 n.7, 29-30; Kimberly's Reply Mem. Supp. Summ. J. 6-10.

15 to use the Compact's equally-weighted three-factor apportionment fonnula; 63 and, more

importantly, (2) to refrain from exercising its sovereign power to eliminate the apportionment

election unless and until it first withdraws from the Compact. 64 Although acknowledging that

Article X, section 1, of the Minnesota Constitution provides, "[t ]he power of taxation shall never

be surrendered, suspended or contracted away," Kimberly asserts that-because enacting states

may re-acquire full sovereignty over apportionment by completely withdrawing from the

Compact-Minnesota's 1983 Compact enactment did not violate this constitutional prohibition. 65

And, although implicitly acknowledging that a State's contractual surrender of sovereign power

normally must be stated in unmistakably clear language, Kimberly argues that this requirement is

inapplicable to interstate compacts, the very purpose of which (according to Kimberly) is to

surrender sovereign power. 66 So reasoning, Kimberly contends that Minnesota validly enacted the

Compact in 1983, and thereby contractually obligated itself both to furnish the apportionment

election and to refrain from using its sovereign power to repeal the election. 67

The United States and Minnesota Constitutions separately prohibit the State from passing

any law impairing the obligation of contracts, including its own. 68 Kimberly contends that

63 Kimberly's Mem. Supp. Summ. J. 6-7. 64 Kimberly's Mem. Supp. Summ. J. 10, 12, 16, 30; Kimberly's Rely Mem. Supp. Summ. J. 1-2, 4. 65 Kimberly's Mem. Supp. Summ. J. 17, 26-28; Kimberly's Reply Mem. Supp. Summ. J. 7, 9. 66 Kimberly's Mem. Supp. Summ. J. 17; Kimberly's Reply Mem. Supp. Summ. J. 5, 7; Tr. 100-01, 111. 67 Kimberly's Mem. Supp. Summ. J. 1, 8, 28, 32; Kimberly's Reply Mem. Supp. Summ. J. 2. 68 U.S. Const. art. I, § 10, cl. 1 states: "No state shall ... pass any ... law impairing the obligation of Contracts." Minn. Const. art. I, § 11 states: "No ... law impairing the obligation of contracts shall be passed."

16 Minnesota violated these constitutional prohibitions in 1987 by repealing Articles III and IV of the

Compact, the sections furnishing the apportionment election. More specifically, Kimberly asserts

that the Minnesota Legislature's 1987 exercise of sovereign power repealing the election both

violated the terms of the Compact69 and impaired the State's obligation under the Compact to

furnish taxpayers the apportionment election. 70 Kimberly thus asserts that we must strike down

the 1987 repeal as an unconstitutional legislative act, that we must recognize the continued vitality

of Articles III and IV (notwithstanding the Legislature's purported repeal of those provisions), and

that we must therefore allow Kimberly's refund claim based upon its invocation of the election. 71

The Commissioner responds that, for numerous reasons, the Legislature's 1987 repeal of

Articles III and IV was a valid legislative act that does not unlawfully impair the obligation of

contracts. First, the Commissioner asserts that the Compact is actually a model law with only

advisory effect. 72 Second, she contends that the State's purported entry into a contract obligating

it to refrain from exercising sovereign taxing power to alter or repeal the apportionment election

would be void ab initio as a violation of Minnesota Constitution Article X, section 1. 73 Third, the

Commissioner argues that no Compact provision surrenders in unmistakable terms the State's

sovereign power to alter or repeal the election and, again, that even unmistakably clear language

69 Kimberly's Mem. Supp. Summ. J. 16-17, 32; Kimberly's Reply Mem. Supp. Summ. J. 2-6; Tr. 57. Although Kimberly insists that it alleges only impairment of contract (not breach of contract), it repeatedly asserts that the Legislature violated the terms of the Compact by repealing Articles III and IV. 70 Kimberly's Mem. Supp. Summ. J. 30-35; Kimberly's Reply Mem. Supp. Summ. J. 13-15. 71 Kimberly's Mem. Supp. Summ. J. 1, 10, 30, 34; Kimberly's Reply Mem. Supp. Summ. J. 2; Tr. 56-58, 60-61. 72 Comm'r's Mem. Supp. Summ. J. 2, 4, 18, 32. 73 Comm'r's Mem. Supp. Summ. J. 14, 15-16; Comm'r's Reply Mem. Supp. Summ. J 2-3.

17 purporting to do so would violate Article X, section 1. 74 Fourth, she contends that-even if the

State had promised not to exercise its sovereign power to repeal the apportionment election-

Kimberly could not enforce that contractual obligation because: (a) it was not a party to the

contract, and lacks standing to enforce the obligation; (b) the 6-year statute of limitations for a

contract-impairment claim based on a 1987 legislative act expired long ago; (c) Compact party

States have waived enforcement of the particular obligation in question; and (d) enforcement is

barred by the doctrine of laches. 75 Finally, the Commissioner argues that, even assuming the

existence of both an enforceable contract right and a litigant who could demand its enforcement,

Kimberly cannot demonstrate that the 1987 repeal substantially impaired the right. 76

IV. DECISIONAL STANDARDS

Kimberly asks us to rule as a matter of law that the Legislature's 1987 act of repealing

Articles III and IV of the Compact violated the contract clauses of the United States and Minnesota

Constitutions. The Commissioner asks us to rule as a matter of law that the 1987 repeal was a

lawful and valid legislative act.

Summary judgment shall be rendered if the pleadings, the record in the case, and any

supporting affidavits show that there is no genuine issue as to any material fact and that a party is

entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d

60, 69 (Minn. 1997). When, as here, parties file cross-motions for summary judgment, they tacitly

agree that there are no genuine issues of material fact. Am. Family Mut. Ins. Co. v. Thiem, 503

74 Comm'r's Mem. Supp. Summ. J. 14, 17-19; Comm'r's Reply Mem. Supp. Summ. J. 3-4, 7-8. 75 Comm'r's Mem. Supp. Summ. J. 14, 22-27; Comm'r's Reply Mem. Supp. Summ. J. 10-12. 76 Comm'r's Mem. Supp. Summ. J. 14, 27-30; Comm'r's Reply Mem. Supp. Summ. J. 12-13.

18 N.W.2d 789, 790 (Minn. 1993). Summary judgment is a suitable vehicle for addressing the

application of law to undisputed facts. See, e.g., Anderson v. Christopherson, 816 N.W.2d 626,

630 (Minn. 2012); A.J. Chromy Constr. Co. v. Commercial Mech. Serv., Inc., 260 N.W.2d 579,

581 (Minn. 1977); Sauter v. Sauter, 244 Minn. 482,486, 70 N.W.2d 351, 354 (1955).

"It is well settled that acts of the legislature are presumed to be constitutional and will not

be declared unconstitutional unless their invalidity appears clearly or unless it is shown beyond a

reasonable doubt that they violate some constitutional provisions." Minn. Energy & Econ. Dev.

Auth. v. Printy, 351 N.W.2d 319,338 n.l (Minn. 1984) (citation omitted) (internal quotation marks

omitted). A court invokes every presumption "in favor of the constitutionality of an act of the

legislature," Contos v. Herbst, 278 N. W.2d 732, 736 (Minn. 1979), including the presumption that

"the legislature does not intend to violate the Constitution of the United States or of this state."

Minn. Stat.§ 645.17(3) (2014); McLane Minn., Inc. v. Comm 'r ofRevenue, 773 N.W.2d 289,298

(Minn. 2009) (applying presumption). Courts exercise the power to declare a legislative act

unconstitutional with extreme caution and only when absolutely necessary. 78th St. OwnerCo,

LLC v. Cnty. of Hennepin, 813 N.W.2d 409, 416 (Minn. 2012); Dohs v. Holm, 152 Minn. 529,

536, 189 N.W. 418, 421 (1922). The party challenging a legislative act carries the heavy burden

of showing unconstitutionality beyond a reasonable doubt. See, e.g., Singer v. Comm 'r ofRevenue,

817 N.W.2d 670, 675 (Minn. 2012). 17

77 The Commissioner agrees that Kimberly is entitled to a refund in the requested amount if Kimberly was entitled to use the Compact's apportionment formula. Stip. 1 20. Likewise, Kimberly agrees that it is entitled to no refund if it was not so entitled. Stip. 1 21. Consequently, there are no disputed material facts in dispute and we can resolve this case by deciding the disputed legal issues.

19 V. ANALYSIS

To determine whether the Legislature's 1987 repeal of Articles III and IV impaired

Minnesota's obligations under the Compact, we must first determine what, if any, obligations were

created by the Legislature's 1983 enactment of the Compact. This requires us to interpret the

Compact.

A. Interstate Compacts Generally

Interstate compacts are "negotiated agreements among member states that have the status

of both contract and statutory law." Caroline N. Broun et al., The Evolving Use and the Changing

Role ofInterstate Compacts 2 (2006); id. at 128 (same); see also Alabama v. N Carolina, 560 U.S.

330, 351 (2010); Doe v. Pennsylvania Bd of Prob. & Parole, 513 F.3d 95, 105 (3d Cir. 2008)

(emphasizing contractual nature of compacts). States enter compacts by enacting statutes

containing model compact language. See, e.g., Doe, 513 F.3d at 105. The United States Supreme

Court has thus characterized compacts as a legislative means "for adjusting interstate

controversies" that "adapts to our Union of sovereign States the age-old treaty making power of

independent sovereign nations." Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304

U.S. 92, 104 (1938). Because interstate compacts can involve matters that concern states as

sovereigns, compacts sometimes involve a partial surrender of sovereign power. See, e.g., Port

Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 314 (1990) (Brennan, J., concurring) ("[T]o

achieve the practical advantages of coordinated planning and administration through the Port

Authority, New York and New Jersey each has ceded partial control over the regulation and

operation of transportation facilities in its own State since 1921 .... "); Int 'I Union of Operating

Eng'rs, Local 542 v. Delaware River Joint Toll Bridge Comm 'n, 311 F.3d 273, 276 (3d Cir. 2002)

("By compacting together to form the Commission, New Jersey and Pennsylvania have each

20 surrendered a portion of their sovereignty over certain Delaware River bridge operations in order

to better serve the regional interest.").

The Compact Clause of the United States Constitution provides: "No State shall, without

the Consent of Congress, ... enter into any agreement or compact with another State .... " U.S.

Const. art. I, § 10, cl. 3. Read literally, this provision "would require the States to obtain

congressional approval before entering into any agreement among themselves, irrespective of

form, subject, duration, or interest to the United States." U.S. Steel, 434 U.S. at 459. The United

States Supreme Court, however, has rejected this literal interpretation, holding instead that the

"application of the Compact Clause is limited to agreements that are directed to the formation of

any combination tending to the increase of political power in the States, which may encroach upon

or interfere with the just supremacy of the United States." Id. at 471 (internal quotation marks and

citations omitted). Congressional consent is not required for interstate agreements that fall outside

the scope ofthe Compact Clause as so interpreted. Cuyler v. Adams, 449 U.S. 433,440 (1981).

Congressional consent is nevertheless significant: it ''transforms an interstate

compact ... into a law of the United States .... " Cuyler, 449 U.S. at 438. Consequently, the

Supreme Court has held "that the construction of an interstate agreement sanctioned by Congress

under the Compact Clause presents a federal question." Id Where Congressional consent is

neither given nor required, an interstate compact is construed as state law. See,. e.g., McComb v.

Wambaugh, 934 F.2d 474,479 (3d Cir. 1991).

B. Interpretive Principles

Because compacts "have the status of both contract and statutory law," Broun et al., at 2,

we set forth the governing principles for interpreting both statutes and contracts.

21 1. Statutes

"The object of all interpretation and construction of laws is to ascertain and effectuate the

intention of the legislature." Minn. Stat. § 645.16 (2014). Legislative intent is determined

"primarily from the language of the statute itself." Brayton v. Pawlenty, 781 N.W.2d 357, 363

(Minn. 2010) (quoting Gleason v. Geary, 214 Minn. 499, 516, 8 N.W.2d 808, 816 (1943)).

Nevertheless, "[i]t is a cardinal rule of statutory construction that a particular provision of a statute

cannot be read out of context but must be taken together with other related provisions to determine

its meaning." Kollodge v. F & L. Appliances, Inc., 248 Minn. 357,360, 80 N.W.2d 62,64 (1956).

Courts thus "read and construe a statute as a whole and must interpret each section in light of the

surrounding sections to avoid conflicting interpretations," Am. Family Ins. Grp. v. Schroedl, 616

N.W.2d 273,277 (Minn. 2000), and to "harmonize and give effect to all its parts," Van Asperen v.

Darling Olds, Inc., 254 Minn. 62,73-74, 93 N.W.2d 690,698 (1958). Likewise, separate statutes

in pari materia-those "relating to the same person or thing or having a common purpose"-are

construed in light of one another. Apple Valley Red-E-Mix, Inc. v. State, 352 N.W.2d 402, 404

(Minn. 1984). Finally, it is presumed that "[i]n enacting statutes ... the legislature acts with full

knowledge of existing law." Goodyear Tire & Rubber Co. v. Dynamic Air, Inc., 702 N.W.2d 237,

244 (Minn. 2005).

"When the Legislature's intent is discernible from plain and unambiguous language,

statutory construction is neither necessary nor permitted; and courts apply the statute's plain

meaning." State v. Jones, 848 N.W.2d 528, 535 (Minn. 2014) (citing Am. Tower, L.P. v. City of

Grant, 636 N.W.2d 309, 312 (Minn. 2001)). Statutory language is ambiguous if it is reasonably

susceptible to more than one interpretation. Christianson v. Henke, 831 N. W.2d 532, 539 (Minn.

2013). Multiple parts of a statute may be read together to ascertain whether the statute is

ambiguous. !d. at 537.

22 2. Contracts

Correspondingly, the primary goal of contract interpretation is "to ascertain and enforce

the intent of the parties." Valspar Refinish, Inc. v. Gaylord's, Inc., 764 N.W.2d 359, 364 (Minn.

2009). In so doing, the court looks to the contract as a whole. Save/a v. City of Duluth, 806

N.W.2d 793, 801 (Minn. 2011). The intent of the parties is not ascertained "by a process of

dissection in which words or phrases are isolated from their context, but rather from a process of

synthesis in which the words and phrases are given a meaning in accordance with the obvious

purpose of the contract ... as a whole." Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc.,

666 N.W.2d 320,324 (Minn. 2003) (quoting Republic Nat'/ Lifo Ins. Co. v. Lorraine Realty Corp.,

279 N. W.2d 349, 354 (Minn. 1979)) (alteration in original); Country ·club Oil Co. v. Lee, 239

Minn. 148, 151-52, 58 N.W.2d 247,249 (1953) (holding that "[a]s far as is reasonably possible [a

contract] is to be construed so as to harmonize all of its parts.").

"Where there is a written instrument, the intent of the parties is determined from the plain

language of the instrument itself." Travertine Corp. v. Lexington-silverwood, 683 N. W.2d 267,

271 (Minn. 2004). When a contract's language is clear and unambiguous, the court enforces the

parties' agreement as expressed in the contract. Caldas v. Affordable Granite & Stone, Inc., 820

N.W.2d 826, 832 (Minn. 2012). A contract is ambiguous if its language is susceptible to two or

more reasonable interpretations. Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 582 (Minn. 2010).

Contracting parties are presumed to know of laws that directly affect their rights. Albrecht

v. Sell, 260 Minn. 566, 569-70, 110 N.W.2d 895, 897 (1961). Moreover, they are generally

presumed to enter contracts "with reference to the existing rules and principles of law applicable

to the subject matter." Propp v. Johnson, 211 Minn. 159, 163-64, 300 N.W. 615, 617 (1941).

Courts disfavor construing government contracts as relinquishing a state's sovereign

powers, and have long held that any such relinquishment must be stated "in language and terms

23 too clear to admit of doubt." State v. Great N Ry. Co., 106 Minn. 303, 322, 119 N.W. 202, 205

(1908), a.ff'd, 216 U.S. 206 (1910). This clear-statement requirement is known as the

unmistakability doctrine. See generally United States v. Winstar Corp., 518 U.S. 839, 872 (1996);

State ex rei. Humphrey v. Philip Morris USA, Inc., 713 N.W.2d 350, 359-63 (Minn. 2006); see

also Tarrant Reg'! Water Dist. v. Herrmann, 133 S. Ct. 2120, 2133 (2013) (applying clear-

statement requirement to Congressionally approved interstate compact).

C. Compact Interpretation

Kimberly contends that Articles III and IV of the Compact unambiguously provide for the

apportionment election and that, because section 290.171 enacts a multistate compact containing

a withdrawal provision, the State bound itself to provide the election to multistate taxpayers unless

and until it completely withdrew from the Compact. 78 Kimberly reasons that because the 1987

legislation repealing Articles III and IV was not a complete withdrawal, it violated the State's

contractual obligation to provide the apportionment election until withdrawal, and was therefore

unlawful as an impairment of that obligation. 79 The Commissioner acknowledges that Articles III

and IV clearly provide for the apportionment election, 80 but asserts that the Compact is merely a

model law with only advisory force. 81 In the alternative, she argues that even though Minnesota

was obligated to provide the election while Articles III and IV remained in force, the State made

no unmistakably clear promise not to amend or repeal it. 82 Reasoning that the State had no

78 Kimberly's Mem. Supp. Summ. J. 7-10, 12, 24, 30; Kimberly's Reply Mem. Supp. Summ. J. 1-2, 4. 79 Kimberly's Mem. Supp. Summ. J. 12, 29-30; Kimberly's Reply Mem. Supp. Summ. J. 2. 8 °Comm'r's Reply Mem. Supp. Summ. J. 7. 81 Comm'r's Mem. Supp. Summ. J. 2, 4, 18, 32. 82 Comm'r's Mem. Supp. Summ. J. 14, 15-16; Comm'r's Reply Mem. Supp. Summ. J. 2-3.

24 enforceable obligation not to amend the election, the Commissioner argues that the Legislature's

1987 repeal neither violated nor impaired a contractual obligation. 83

1. Binding Force

As a preliminary matter, we reject the Commissioner's claim that the Compact is actually

a model law with only advisory effect. 84 Although asserting this position, the Commissioner never

actually argues that the Compact creates no binding obligations-never identifies and applies

criteria for determining the Compact's legal effect. Instead, she argues more narrowly, for

example, that "[t]he enactment of section 290.171 did not form a contract surrendering the

Legislature's authority to modify or repeal Articles III and IV of the Statute." 85 This ambiguous

formulation can be read either: (a) as arguing that no contract was formed, or (b) as conceding

that a contract was formed, but asserting that it contained no provision prohibiting the repeal of

Articles III and IV. 86 Because the Commissioner never actually argues that the Legislature's

enactment of section 290.171 did not form a binding contract, that argument is waived. See, e.g.,

State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (finding argument waived when a "brief

contain[ed] no argument or citation to legal authority in support of the allegations").

83 Comm'r's Mem. Supp. Summ. J. 21-22. 84 Comm'r's Mem. Supp. Summ. J. 2, 4, 18, 32. 85 Comm'r's Mem. Supp. Summ. J. 15. 86 See also Comm'r's Mem. Supp. Summ. J. 16, 17, 18, 19, 20, 21, 31,32 (making similarly qualified and therefore ambiguous assertions); Tr. 40-41, 86 (same).

25 Consequently, we assume (without deciding) that the Compact was a contract among Minnesota

and the other States that adopted it and that the Compact created binding obligations. 87

2. Unmistakability Doctrine

The rule of contract construction requiring that government contracts must be strictly

construed against the relinquishment of sovereign powers is known as the "unmistakability

doctrine." Winstar, 518 U.S. at 874 (plurality opinion); Philip Morris, 713 N.W.2d at 359.

a. Rationale and Requirements

As the United States Supreme Court has explained, "sovereign power ... governs all

contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in

unmistakable terms." Winstar, 518 U.S. at 872 (ellipsis in original) (internal quotation marks

omitted) (quoting Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 52

(1986)). The doctrine recognizes that the Contracts Clause of the United States Constitution can

limit the sovereign power of a State, but that this potential limitation can be problematic. Id at

873-74. "Although [the Contracts] Clause made it possible for state legislatures to bind their

successors by entering into contracts, it soon became apparent that such contracts could become a

threat to the sovereign responsibilities of state governments." !d. at 874.

87 The Michigan Court of Claims recently concluded that the Compact (as drafted in 1966, presented to the States in 1967, and enacted by Michigan in 1969) was an "advisory compact" rather than a binding interstate compact, because it lacked the three "classic indicia" of a binding compact. See Ingram Micro, Inc. v. Dep 't ofTreasury, No. 11-000035-MT, slip op. at 7-12 (Mich. Ct. Cl. Dec. 19, 2014), appeal docketed, No. 325507 (Mich. Ct. App. Jan. 9, 2015); Yaskawa Am. Inc. v. Dep 'to/Treasury, No. 11-000077-MT, slip op. at 7-11 (Mich. Ct. Cl. Dec. 19, 2014), appeal docketed, No. 325475 (Mich. Ct. App. Jan. 8, 2015). In contrast to binding compacts, advisory compacts "cede no state sovereignty nor delegate any governing power to a compact-created agency." Broun et al., at 14. The California Court of Appeals previously concluded that the Compact (as enacted by California in 1974) was a binding interstate compact that had all three "classic indicia" of such compacts. Gillette, 147 Cal. Rptr. 3d at 613-15. For the reasons we explain, we need not and do not reach the issue.

26 Courts thus developed the unmistakability doctrine in early Contracts Clause cases "to

protect state regulatory powers." Winstar, 518 U.S. at 874; Philip Morris, 713 N.W.2d at 359-60.

Under this rule that all public grants are strictly construed, we have insisted that nothing can be taken against the State by presumption or inference, and that neither the right of taxation, nor any other power of sovereignty, will be held ... to have been surrendered, unless such surrender has been expressed in terms too plain to be mistaken.

Winstar, 518 U.S. at 874-75 (alteration in original) (internal quotation marks and citations

omitted). As a result of this plain-statement requirement,

a contract with a sovereign government will not be read to include an unstated term exempting the other contracting party from the application of a subsequent sovereign act (including an Act of Congress), nor will an ambiguous term of a grant or contract be construed as a conveyance or surrender of sovereign power.

Id at 878. When a contract provision implicates a State's sovereign power, the doctrine requires

the State to make a clear "second promise" to refrain from using that sovereign power to alter the

primary promise. !d. at 887 (commenting in a case where the doctrine did not apply, "[t]here being

no need for an unmistakably clear 'second promise' not to change the capital requirements, it is

sufficient that the Government undertook an obligation that it subsequently found itself unable to

perform"). The doctrine serves "the dual purposes of limiting contractual incursions on a State's

sovereign powers and of avoiding difficult constitutional questions about the extent of state

authority to limit the subsequent exercise of legislative power." !d. at 875.

The unmistakability doctrine does not apply to all government contracts. Winstar, 518

U.S. at 871, 879-84; Philip Morris, 713 N.W.2d at 360-63. Its applicability to a particular claim

"turns on whether enforcement of the contractual obligation alleged would block the exercise of a

sovereign power of the Government." Winstar, 518 U.S. at 879.

27 At one end of the spectrum are obligations to which the unmistakability doctrine always applies, that is, claims for enforcement of contractual obligations that could not be recognized without effectively limiting sovereign authority . . . . At the other end of the spectrum are ordinary contracts, such as humdrum supply contracts, where sovereign power is not compromised by enforcement of the promise made, and the unmistakability doctrine therefore never applies.

Philip Morris, 713 N.W.2d at 361 (citations and internal quotation marks omitted).

The Minnesota Supreme Court has long applied the unmistakability doctrine to resist

construing contracts as abrogating the State's sovereign power. For example, before the passage

in 1906 of Article X, section 1, of the Minnesota Constitution (providing that "[t]he power of

taxation shall never be surrendered, suspended or contracted away"), it was settled law that the

State could "by contract, irrevocably bind itself not to exercise, or may irrevocably limit the

exercise of, its power of taxation." State ex rei. Hahn v. Young, 29 Minn. 474, 538, 9 N.W. 737,

747 (1881). Despite the State's then clear authority to abrogate its own power of taxation, the

Minnesota Supreme Court nevertheless resisted fmding that this authority had been exercised.

The right of a state government ... by contract to limit its power of taxation, is a doctrine too firmly established to admit of discussion at this time.... The contract to be irrepealable, however, must clearly and conclusively appear. The power of taxation is a sovereign prerogative; its exercise is indispensable to the maintenance of the state and its institutions, and no inferences or presumptions arising from indefinite and uncertain language that it has relinquished, limited, or abandoned the right as to any particular person or corporation should be indulged by the court in support of an immunity not enjoyed by all taxpayers alike. Therefore the contract is strictly to be construed, and must be in language and terms too clear to admit of doubt.

Great N Ry., 106 Minn. at 322, 119 N. W. at 205 (emphasis added) (citations omitted). Thus, even

when the Minnesota Constitution permitted surrender of the taxing power, the supreme court

resisted construing contracts to effect that purpose. All ambiguity must be resolved in favor of

reserving the State's sovereign power. /d. at 323; see also Minneapolis Gas Co. v. Zimmerman,

253 Minn. 164, 184, 91 N.W.2d 642, 656 (1958) ("[A]ll contracts made by the state are entered

28 into subject to the implied condition that they are ever subordinate to a reasonable and proper

exercise of the state's inalienable police power.").

The Minnesota Supreme Court most recently applied the unmistakability doctrine to reject

a claim by cigarette manufacturers that their 1998 settlement agreement with the State

contractually prohibited the Legislature from subsequently imposing a health impact fee on

cigarettes. Philip Morris, 713 N.W.2d at 353. The court ruled that imposition of the fee "does not

violate the settlement agreement because the terms of the settlement agreement do not

unmistakably relinquish the state legislature's sovereign authority to impose such an exaction on

tobacco products." /d. Along the way, the court rejected the manufacturers' claim that the doctrine

did not apply because the settlement agreement was a simple risk-shifting instrument that could

be enforced without implicating sovereign power. Id. at 360-63. "[T]he very relief respondents

seek requires the state either to exempt respondents from the exercise of the state's sovereign

powers to tax and to regulate, or to surrender those powers with respect to the cigarette industry

altogether." ld at 361.

b. Applicability

We reject Kimberly's contention that the unmistakability doctrine does not apply to

interstate compacts. 88 Indeed, a treatise addressing the modern use of interstate compacts indicates

that they exemplify implementation of the unrnistakability doctrine, rather than representing an

exception to that doctrine: "Many compacts constitute an unmistakable surrendering of state

88 Kimberly's Mem. Supp. Summ. J. 17; Tr. 51 ("The fact that this is a Compact, an interstate compact, ... that's the reason that the State can't repeal Articles 3 and 4. A compact does not need to say, you may not repeal this provision, or you may not repeal any provision. That's the premise of a compact.").

29 authority that is binding on subsequent state legislative action. Such compacts are, therefore,

examples of the so-called 'unmistakability doctrine' at work." Broun et al., at 20.

Kimberly's assertion that the doctrine does not apply to interstate compacts is further belied

by Tarrant Regional Water District v. Herrmann, adjudicating a dispute involving the Red River

Compact, which allocates water rights within the Red River basin among the States of Oklahoma,

Texas, Arkansas, and Louisiana. 133 S. Ct. 2120, 2125 (2013). Petitioner Tarrant Regional Water

District, a Texas state agency responsible for providing water to north-central Texas, alleged that

"it [wa]s entitled to acquire water under the Compact from within Oklahoma and that therefore the

Compact pre-empt[ed] several Oklahoma statutes that restrict out-of-state diversions of water."

!d. Specifically, Tarrant claimed that under a compact provision that did not mention state borders,

it had "the right to cross state lines and divert water from Oklahoma located in [a particular]

subbasin .... " !d. at 2129.

The Supreme Court commented that "[u]nraveling the meaning of [the contested

provision's] silence with respect to state lines is the key to resolving whether the Compact

pre-empts the Oklahoma water statutes." Tarrant, 133 S. Ct. at 2130. The Court concluded that

problems with Tarrant's proposed textual interpretation "suggest that [the provision's] silence is

ambiguous regarding cross-border rights under the Compact." !d. at 2132. The Court therefore

turned "to other interpretive tools to shed light on the intent of the Compact's drafters." !d. The

first of these tools was "the well-established principle that States do not easily cede their sovereign

powers, including their control over waters within their own territories." !d.

The Court commented: "The background notion that a State does not easily cede its

sovereignty has informed our interpretation of interstate compacts." Tarrant, 133 S. Ct. at 2133.

In spite of this longstanding principle, Tarrant asked the Court "to infer from [the provision's]

30 silence regarding state borders that the signatory States ha[ d] dispensed with the core state

prerogative to control water within their own boundaries." !d. at 2132-33. The Court not only

rejected this request, but concluded that a precisely contrary inference was warranted:

[A]s the above demonstrates, States rarely relinquish their sovereign powers, so when they do we would expect a clear indication of such devolution, not inscrutable silence. We think that the better understanding of [the provision's] silence is that the parties drafted the Compact with this legal background in mind, and therefore did not intend to grant each other cross-border rights under the Compact.

Tarrant, 133 S. Ct. at 2133.

Based on the foregoing, we conclude that the unmistakability doctrine's clear-statement

requirement applies to interstate compacts, and that compacts are drafted with this requirement in

mind. See Ingram, No. 11-000035-MT, slip op. at 10-11 (applying Tarrant to the Multistate Tax

Compact). Kimberly's effort to exempt compacts from the doctrine 89 is nothing more than an

attempt to impermissibly shift the burden to the Commissioner to demonstrate that some provision

of the Compact expressly reserved to the State its sovereign power. See Winstar, 518 U.S. at 878

(noting that ''unmistakability [i]s needed for waiver [of sovereign power], not reservation").

We further conclude that the doctrine applies to Kimberly's Contract Clause claim in

particular. Kimberly contends that the Legislature's 1987 repeal of the election unconstitutionally

impaired the State's alleged obligation under the Compact to furnish taxpayers the election.90

Kimberly thus asserts that we must strike down the 1987 repeal as an unconstitutional legislative

act, recognize the continued vitality of Articles III and IV during the tax years at issue, and allow

89 Tr. 103 ("[W]hen the Compact allows a state to deviate from [its] terms, it expressly says this provision is optional."). 9 ° Kimberly's Mem. Supp. Summ. J. 30-35; Kimberly's Reply Mem. Supp. Summ. J. 13-15.

31 Kimberly to invoke the election for those tax years. 91 Plainly, Kimberly's requested relief"would

block the exercise of a sovereign power of the [State]." Winstar, 518 U.S. at 879. First, it would

retroactively block the Legislature's sovereign act of repealing the election. Second, it would

prevent the Commissioner from enforcing existing Minnesota law, which does not include the

election. 92

c. Analysis

The unmistakability doctrine requires that "a contract purporting to limit the state's right

to tax in the future 'is to be strictly construed, and must be in language and terms too clear to admit

of doubt.' " Philip Morris, 713 N. W.2d at 360 (internal quotation marks and citation omitted); see

also Winstar, 518 U.S. at 875. Although Kimberly asserts that Articles III and IV provide for the 93 apportionment election "[i]n unmistakable terms," its written submissions do not identify any

Compact provision satisfying the unmistakability doctrine. During oral argument, Kimberly again

declined to identify any particular Compact provision satisfying the doctrine, and instead pointed

to the document as a whole and to its status as an interstate compact. 94

91 Kimberly's Mem. Supp. Summ. J. 1, 10, 30, 34; Kimberly's Reply Mem. Supp. Summ. J. 2; Tr. 56-58, 60-61. 92 The unmistakability doctrine's purpose of constitutional avoidance is doubly implicated in the present case. First, application of the doctrine may eliminate the need to address Kimberly's Contracts Clause claim that the 1983 Compact enactment limited the Legislature's subsequent authority to control apportionment. See Winstar, 518 U.S. at 87 5 (explaining that the doctrine was developed to avoid difficult constitutional questions concerning "the extent of state authority to limit the subsequent exercise of legislative power"). In this case, moreover, application may also eliminate the need to address an additional constitutional issue raised by the Commissioner: whether the 1983 enactment of the Compact violated Article X, section 1, of the Minnesota Constitution, which provides that "[t]he power of taxation shall never be surrendered, suspended or contracted away." Comm'r's Mem. Supp. Summ. J. 15-16, 21; Comm'r's Reply Mem. Supp. Summ. J. 2-3. 93Kimberly's Mem. Supp. Summ. J. 6; id at 17 (arguing that "the Compact's terms are plain and unmistakable - they require that the election be provided to taxpayers"). 94 Tr. 100-04.

32 We have already rejected Kimberly's assertion that the unmistakability doctrine does not

apply to interstate compacts. We now address Kimberly's apparent contention that the language

of Articles III and IV prohibited Minnesota from revoking the apportionment election (unless it

first completely withdrew from the Compact). Article III(1) provides that any qualifying taxpayer

"may elect to apportion and allocate his income in the manner provided by the laws of such

state . . . without reference to this compact, or may elect to apportion and allocate in accordance

with article IV." Minn. Stat. § 290.171, Art. III(1 ). Kimberly argues that this provision "requires

party states to allow taxpayers to elect either the Compact Formula or a party state's own 95 alternative State Formula" and concludes on this basis that "[t]he election provision is not an

option for party states." 96

The Commissioner acknowledges the prenuse, but argues that it does not support

Kimberly's conclusion: "There is no dispute that a taxpayer could use the election prior to the

repeal of articles III and IV in 1987. The issue here is whether section 290.171 prohibited the 97 legislature from repealing articles III and IV." We agree with both· the Commissioner's

formulation of the issue and her assertion that nothing in the text of Articles III and IV constitutes

a promise that Minnesota would not amend or repeal the election. Put another way, Articles III

and IV clearly provide for the apportionment election, but do not contain a separate and distinct

promise that the State would not alter or repeal the election. If the Compact contains such a

separate promise, it must be located elsewhere.

95 Kimberly's Mem. Supp. Summ. J. 16. 96 Kimberly's Mem. Supp. Summ. J. 16. 97 See Comm'r's Reply Mem. Supp. Summ. J. 7.

33 A treatise on interstate compacts contains an example of compact language clearly

surrendering sovereign power against the background of the unmistakability doctrine:

A perfect example of states ceding their sovereignty through an interstate compact can be found in Article XIV, Sections A and B of the Interstate Compact for Adult Offender Supervision. These two sections of the compact provide, in part, that (1) "[a]ll compacting States' laws conflicting with this Compact are superseded to the extent of the conflict;" and (2) "All lawful actions of the Interstate Commission, including all Rules and By-laws promulgated by the Interstate Commission, are binding upon the Compacting States."

Broun et al., at 22 (quoting Interstate Compact for Adult Offender Supervision (2002)).

As Kimberly acknowledges, 98 the Compact contains no language similarly stating that

Minnesota laws conflicting with the Compact are superseded or that actions of the Multistate Tax

Commission are binding upon Minnesota. The absence of such a provision "counts heavily"

against Kimberly's interpretation that the Compact surrenders sovereign power. See Tarrant, 133

S. Ct. at 2133 (noting that many compacts "feature language that unambiguously permits signatory

States to cross each other's borders to fulfill obligations under the compacts" and concluding that

"[t]he absence of comparable language in the Red River Compact counts heavily against Tarrant's

reading of it."). Although Article IX of the Compact, titled "Arbitration," provides in part that

"[e]ach party state ... hereby consents to the arbitration as provided herein, and agrees to be bound

thereby," Minn. Stat. § 290.171, Art. IX(3) (emphasis added), there is no similar language binding

party States to other Compact provisions generally, or to Articles III and IV, in particular.

Moreover, the United States Supreme Court has concluded that the Compact involves no

"delegation of sovereign power to the [Multistate Tax] Commission." U.S. Steel, 434 U.S. at 453.

No Compact provision in clear and unmistakable language bars Minnesota from amending or

repealing the apportionment election.

98 Tr. 100-04; see also Comm'r's Reply Mem. Supp. Summ. J. 3.

34 In response to a parallel invocation of the Compact election by IBM in Michigan, three

dissenting Justices similarly concluded that the Compact created "no contractual obligation to

strictly adhere to Articles III and IV." Int 'I Bus. Machines Corp. v. Dep 't ofTreasury, 852 N.W.2d

865, 888 (Mich. 2014) (McCormack, J ., dissenting). This conclusion rested, in large part, on

"principles of state sovereignty." ld Under Michigan law, as under Minnesota law, "surrenders

of legislative power are subject to strict limitations that have developed in order to protect the

sovereign prerogatives of state governments." Id In the dissenters' view, "[t]he Compact's

silence on the effect of a member state's ability to elect an exclusive apportionment formula

indicates that Michigan did not contract away its right to do exactly that." !d. 99

We agree with the Commissioner that although Articles III and IV unambiguously provide

for the apportionment election, 100 no Compact provision contains or constitutes a separate clear

and unmistakable promise that the State would not alter or repeal the election. 101 See Ingram,

No. 11-000035-MT, slip op. at 10 (noting that although the Compact expressly permits unilateral

withdrawal, "[w]hether unilateral modification is permitted under the Compact is less clear and is

99 Because the IBM majority concluded that the Michigan Legislature had never repealed the Compact, IBM, 852 N. W.2d at 872-77, and accordingly that "the Compact's election provision remained in effect" for the tax years in issue, id. at 876, the majority had no occasion to consider whether the Compact contractually obligated Michigan not to alter the election. 10 °Comm'r's Reply Mem. Supp. Summ. J. 7. 101 Comm'r's Mem. Supp. Summ. J. 18; Comm'r's Reply Mem. Supp. Summ. J. 3-4.

35 not directly addressed under the Compact."). Accordingly, we conclude that no Compact

provision satisfies the unmistakability doctrine's clear-statement requirement. 102

Kimberly implies in the alternative that a surrender of sovereignty can be inferred from the

Compact's audit and withdrawal provisions. 103 We disagree.

The Compact's audit provision, Article VIII, "authorizes any member State ... to request

that the Commission perform an audit on its behalf." U.S. Steel, 434 U.S. at 457. Article VIII,

Section 3, in tum, authorizes the Commission "as the State's auditing agent, [to] seek compulsory

process in aid of its auditing power in the courts of any State that has adopted Art. VIII." !d. It

also provides that "[t]he provisions of this paragraph apply only to courts in a state that has adopted

this article." Minn. Stat. § 290.171, Art. VIII(3).

Based on the foregoing language, Kimberly infers: (1) that States were free not to adopt

Article VIII; and, by negative implication, (2) that they were therefore required to adopt the

102 In considering a California taxpayer's claim that the Compact (as adopted by California in 1974) prohibited the State from eliminating the apportionment election, the California Court of Appeals concluded that the Compact surrendered sovereign authority: "[S]ignatory states cede a level of sovereignty over matters covered in a compact . . . . Because the Compact is both a statute and a binding agreement among sovereign signatory states, having entered into it, California could not, by subsequent legislation, unilaterally alter or amend its terms." Gillette, 147 Cal. Rptr. 3d at 616 (citations omitted). The court found a contractual surrender of sovereign power, however, without applying the unmistakability doctrine's clear-statement requirement. See, e.g., Standard Oil Co. ofCal. v. Johnson, 76 P.2d 1184, 1189 (Cal. 1938) ("The taxing power of the state is never presumed to have been relinquished unless the language in which the surrender is made is clear and unmistakable.") (citation and internal quotation marks omitted); Coso Energy Developers v. Cnty. of Inyo, 19 Cal. Rptr. 3d 669, 685 (Cal. Ct. App. 2004) (applying doctrine). We note that Gillette was filed on October 2, 2012, approximately eight months before Tarrant reiterated that the clear-statement requirement applies to interstate compacts. Tarrant, 133 S. Ct. at 2133. In any event, applying the unmistakability doctrine, we conclude that the Compact does not surrender state sovereign power. 103 Kimberly's Mem. Supp. Summ. J. 7-8, 17; Kimberly's Reply Mem. Supp. Summ. J. 7; Tr. 51, 103-04.

36 Compact's remaining articles. 104 Then, characterizing the remaining articles as "mandatory," 105

Kimberly argues in substance that party States surrendered the sovereign authority to alter or repeal

the mandatory provisions, including Articles III and IV. 106 There are several flaws in this

reasoning.

First, other Compact language undermines Kimberly's initial inference that all Compact

provisions other than Article VIII were mandatory. Article XI provides in part that nothing in the

Compact shall be construed to "[a]ffect the power of any state ... to fix rates of taxation, except

that a party state shall be obligated to implement article III 2." Minn. Stat. § 290.171, Art. XI(a)

(emphasis added). If, as Kimberly asserts, all Compact provisions other than Article VIII were

mandatory, then the emphasized passage expressly making Article III(2) mandatory would be

superfluous. Moreover, by specifically mandating the implementation of Article III(2) alone,

Article XI( a) suggests that all provisions other than Article III(2) were optional. Article VIII(3)

104 Kimberly's Mem. Supp. Summ. J. 17; Tr. 51-52. 105 Kimberly's Mem. Supp. Summ. J. 6-8, 15-17; Tr. 51-52, 108-09. 106 Kimberly's Mem. Supp. Summ. J. 17. We say "argues in substance" because Kimberly avoids directly stating that Minnesota surrendered sovereign power to alter or repeal the election Instead, Kimberly asserts generally that "parties to an interstate compact cede some sovereignty." Kimberly's Reply Mem. Supp. Summ. J. 7; Tr. 101 (asserting that interstate compacts "cede some sovereign authority"). Then, invoking the notion of "mandatory" provisions, see Kimberly's Mem. Supp. Summ. J. 17 ("the Compact is express when it allows variations from its terms"), Kimberly finesses the sovereignty issue by asserting that Minnesota "simply obligated itself to comply with the Compact's terms until such time as it withdrew in accordance with the Compact." Kimberly's Mem. Supp. Summ. J. 17. Accordingly, what Kimberly means by a "mandatory" provision is one that the state may not alter or repeal. Thus, in substance, Kimberly argues that Minnesota lacked sovereign authority to alter or amend the legislation that established the apportionment election unless and until it completely withdrew from the Compact. As to Chief Judge Turner's concurrence, we are unaware of any principle that prohibits a court from critically evaluating a litigant's submissions and plainly stating the true import of its arguments. We trust that the careful reader, in particular, will perceive that this is precisely what we have done.

37 actually supports this interpretation, because it specifically contemplates that some party States

might not adopt Article VIII.

In any event, there is a second, more fundamental, problem with Kimberly's reasoning.

Even if Articles III and IV were "mandatory," this would establish only that party States had to

adopt the articles and to honor the obligations stated therein while those articles remained in force.

The question presented by the unmistakability doctrine, however, is not whether government

contracts create binding obligations; the entire impetus for the doctrine arises from the assumption

that they surely do, and can thus prevent the proper exercise of state regulatory powers. Winstar,

518 U.S. at 874-75. Specifically to avoid the difficult constitutional questions that arise because

government contracts bind, !d. at 872, the doctrine also assumes that, "absent an unmistakable

provision to the contrary, contractual arrangements, including those to which a sovereign itself is

a party, remain subject to subsequent legislation by the sovereign," ld at 877 (citation and internal

quotation marks omitted). The determinative question for unmistakability purposes is thus

whether the Compact includes a "second promise" clearly indicating that party states were

surrendering the sovereign power generally assumed to govern all contracts. !d. Even if Articles

III and IV are considered "mandatory," this does not resolve the unmistakability inquiry; to the

contrary, it actually triggers that inquiry.

Finally, Kimberly's assertion that Article VIII satisfies the unmistakability doctrine fails

on the merits. Section 3 provides simply that its provisions "apply only to courts in a state that

has adopted this article." Minn. Stat. § 290.171, Art. VIII(3 ). This limitation upon the applicability

of a single Compact provision is not a clear and unmistakable promise that party states ·are

surrendering sovereign power. Nor can Kimberly's tenuous inference of surrender (as previously

38 summarized) satisfy the doctrine because "[n]othing can be taken against the State by presumption

or inference." Winstar, 518 U.S. at 874 (citation and internal quotation marks omitted).

We likewise reject Kimberly's argument that the Compact's withdrawal provision, Article

X(2), satisfies the unmistakability doctrine. 107 That section provides: "Any party state may

withdraw from this compact by enac_ting a statute repealing the same. No withdrawal shall affect

any liability already incurred by or chargeable to a party state prior to the time of such withdrawal."

Minn. Stat. § 290.171, Art. X(2). Kimberly's argument-which again conflates whether the

Compact is binding with whether it surrenders sovereign power-runs as follows: "The

withdrawal provision supports the binding nature of the Compact.... Because parties to an

interstate compact cede some sovereignty, a withdrawal provision allows a state to regain complete

sovereignty. Many other compacts contain similar withdrawal provisions." 108 The Commissioner

responds that the withdrawal provision is silent concerning whether Articles III and IV may be

repealed. 109

We conclude that the withdrawal provision does not satisfy the unmistakability doctrine.

First, the withdrawal provision addresses how a party State may entirely withdraw from the

agreement, not whether party States are surrendering sovereign power to legislate with respect to

the Compact's subject matter. We thus agree with the Commissioner that Article X(2) is silent

concerning the surrender of sovereignty. Second, some compacts containing withdrawal

provisions also contain separate provisions expressly indicating that compact provisions prevail

over conflicting state laws and that actions of the compact's commission are binding on party

107 Kimberly's Reply Mem. Supp. Summ. J. 7; Tr. 7, 66, 104. 108 Kimberly's Reply Mem. Supp. Summ. J. 7 (citation omitted). 109 Comm'r's Reply Mem. Supp. Summ. J. 3-4; Tr. 21.

39 States. See, e.g., Interstate Compact for Adult Offender Supervision, Art. XII(A) ("Withdrawal"),

Art. XIV(A)-(B) ("Binding Effect of Compact and Other Laws"). The inclusion of such separate

and express provisions demonstrates an understanding that the surrender of sovereignty cannot be

accomplished by means of a standard withdrawal provision that is silent as to sovereignty. As the

United States Supreme Court has noted, compacts are drafted against the legal background of the

unmistakability doctrine's clear-statement requirement, and a surrender of state sovereignty will

not be inferred from ambiguity or silence. Tarrant, 133 S. Ct. at 2133.

d. Unmistakability Conclusion

The unmistakability doctrine applies only when "enforcement of the contractual obligation

alleged would block the exercise of a sovereign power of the Government." Winstar, 518 U.S. at

879; see also Philip Morris, 713 N.W.2d at 361. The doctrine applies here because Kimberly:

(1) asserts that the State contractually promised not to alter the apportionment election provided

by Articles III and IV of the Compact; and (2) asks that we invalidate the 1987 repeal of Articles

III and IV and allow it to invoke the election for the tax years at issue, remedies that would block

the exercise of State sovereign power. Applying the doctrine, we conclude that no Compact

provision constitutes a clear and unmistakable promise to refrain from using the State's sovereign

power to alter the apportionment election provided by Articles III and IV. 110

3. Silence as Ambiguity Concerning Surrender of Sovereign Power

Although application of the unmistakability doctrine reveals that the Legislature did not-

by enacting the Compact-promise to refrain from using its sovereign power to alter the

110We have no occasion to consider or decide whether the doctrine would apply to other claims involving the Compact (which might neither implicate sovereign power in the first place nor request a remedy ultimately blocking the exercise of such a power).

40 apportionment election, consideration ofboth the Compact's history and of the party States' course

of performance under the Compact furnishes an alternative route to the same conclusion.

As Tarrant indicates, interstate compacts are drafted against the legal background of the

unmistakability doctrine's clear-statement requirement. Tarrant, 133 S. Ct. at 2133. Thus,

absence from the Compact of a provision clearly surrendering sovereign power to alter the

apportionment election renders the Compact ambiguous as to any such surrender. See id. at 2132

(ruling that contested provision's "silence is ambiguous regarding cross-border rights under the

Compact"). Put another way, the absence of a clear surrender provision renders the Compact

reasonably susceptible to an interpretation (a) that it surrenders sovereign power (leaving aside

application of the unmistakability doctrine), or (b) that it does not. Christianson, 831 N.W.2d

at 538-39 (stating standard for ambiguity of a statute); Dykes, 781 N.W.2d at 582 (stating standard

for ambiguity of a contract).

"When a statutory provision is ambiguous, it is appropriate to tum to the canons of statutory

construction to ascertain a statute's meaning." State v. Leathers, 799 N.W.2d 606, 611 (Minn.

2011). To determine legislative intent, a court also may "consider the legislative history of the act

under consideration, the subject matter as a whole, the purpose of the legislation, and objects

intended to be secured thereby." Sevcik v. Comm 'r of Taxation, 257 Minn. 92, 103, 100

N.W.2d 678, 686-87 (1959); see also Minn. Stat. § 645.16(1)-(8) (2014) (setting out factors for

statutory interpretation); Oklahoma v. New Mexico, 501 U.S. 221, 234-36 & n.5 (1991) (noting

that extrinsic evidence of negotiating history may be used to interpret an ambiguous interstate

compact).

Correspondingly, in construing ambiguous contract language, "resort may be had to

extrinsic evidence." Cut Price Super Markets v. Kingpin Foods, Inc., 256 Minn. 339, 354, 98

41 N.W.2d 257,268 (1959). Pertinent extrinsic evidence includes the parties' course of performance.

See id. at 354; 98 N.W.2d at 268; see also Restatement (Second) of Contracts § 202(5) (1981)

("Wherever reasonable, the manifestations of intention of the parties to a promise or agreement

are interpreted as consistent with each other and with any relevant course of performance, course

of dealing, or usage of trade.").

a. Compact's Drafting History

The parties largely agree on the Compact's drafting history. 111 In 1959, the United States

Supreme Court clarified its jurisprudence with respect to the power of States to tax interstate

businesses, holding that "net income from the interstate operations of a foreign corporation may

be subjected to state taxation provided the levy is not discriminatory and is properly apportioned

to local activities within the taxing State forming sufficient nexus to support the same." Portland

Cement, 358 U.S. at 452. The Court thus affirmed state taxes on the net income of non-resident

businesses whose only connection to the taxing state was the maintenance of a modest sales office

and the solicitation of sales within the state. !d. at 453-57 (describing the taxed businesses' in-

state facilities and activities).

As relevant here, Portland Cement engendered two Congressional responses. First, within

seven months, Congress passed Public Law 86-272, which prohibited States from taxing the net

income of interstate businesses whose sole activity in the taxing state was soliciting orders for the

sale of tangible personal property. See Heublein, Inc. v. S.C. Tax Comm 'n, 409 U.S. 275, 278-81

(1972).

111 See, e.g., Kimberly's Mem. Supp. Summ. J. 4-6; Comm'r's Mem. Supp. Summ. J. 4-5.

42 In this statute, Congress attempted to allay the apprehension of businessmen that "mere solicitation" would subject them to state taxation. Such apprehension arose because, as businessmen who sought relief from Congress viewed the situation, Northwestern States Portland Cement did not adequately specify what local activities were enough to create a "sufficient nexus" for the exercise of the State's power to tax. [The statute] was designed to define clearly a lower limit for the exercise of that power. Clarity that would remove uncertainty was Congress' primary goal.

Jd at 280.

Second, Congress "authorized a study for the purpose of recommending legislation

establishing uniform standards to be observed by the States in taxing income of interstate

businesses." US. Steel, 434 U.S. at 455. More specifically, Congress established "[a] special

subcommittee (the Willis Committee)" which "reported five years later with specific

recommendations for federal statutory solution to the interstate allocation problem." ld at 487

(White, J ., dissenting). The 1965 Willis Report criticized the variety and changeability of state

apportionment formulas and made specific recommendations to increase the uniformity of state

taxation of interstate businesses. 112 Shortly after the Report's publication, a bill was introduced in

Congress to implement its recommendations. See H.R. 11798, 89th Cong., 2nd Sess. (1965). That

bill, however, failed to become law. US. Steel, 434 U.S. at 455-56 & n.4.

Given this congressional activity in the wake of Portland Cement, States perceived a

"growing likelihood that federal action will curtail seriously existing State and local taxing power 113 if appropriate coordinated action is not taken very soon by the States." Consequently, "[a]

special meeting of the National Association of Tax Administrators was called in January 1966;

that gathering was the genesis of the Multistate Tax Compact." US. Steel, 434 U.S. at 487 (White,

112 Ex. J51, at 118-19, 1133-38 (H.R. Rep. No. 89-952 (1965)). 113 Ex. J35, at KC11525.

43 J., dissenting). In its first annual report dated January 28, 1969, the Multistate Tax Commission

stated:

The origin and history of the Multistate Tax Compact are intimately related and bound up with the history of the states' struggle to save their fiscal and political independence from encroachments of certain federal legislation introduced in congress during the past three years. These were the Interstate Taxation Acts, better known as the Willis bills. 114

A completed draft of the Compact "was presented to the states in January 1967." 115 The Compact

became effective on August 4, 1967, after it was enacted into law by seven states. 116

Again conflating the separate questions of whether the Compact is binding and whether its

terms "remain[ed] subject to subsequent legislation' [sic] by the sovereign," Winstar, 518 U.S. at

877 (citation and internal quotation marks omitted)-K.imberly argues that "the Compact drafters 117 intended the apportionment election to be mandatory and binding." According to Kimberly:

Variation in state apportionment formulas was a primary focus of the Congressional [Willis] report, and Congress was poised to impose a mandatory apportionment formula on all states. The election was a core element of the Compact in order to secure a base-line level of uniformity and thus critical for states to avoid federal imposition of a one-size-fits-all apportionment formula. 118

In Kimberly's view, the Compact's drafting history is "compelling evidence" that "the election is 119 not optional."

We have no difficulty agreeing with Kimberly's general thesis: that through coordinated

action, States sought to increase uniformity and thereby to reduce the perceived need in Congress

114 Ex. 136, at KC 11434. 115 Ex. 136, at KC11435. 116 Ex. 136, at KC11433. 117 Kimberly's Mem. Supp. Summ. J. 21. 118 Kimberly's Mem. Supp. Summ. J. 21-22 (citation omitted). 119 Kimberly's Mem. Supp. Summ. J. 22.

44 for federal intervention. We question, however, whether the numerous State officials who either

directly drafted the Compact, or cooperated in its drafting, would have considered an agreement

surrendering the States' sovereign taxing powers as a viable means for achieving this purpose.

As the Commissioner observes, "Minnesota and at least 13 current or former Compact

members have provisions in their state constitutions prohibiting the surrendering or contracting

away of taxation authority." ° Five of the eleven States represented at a June 15, 1967 meeting 12

to organize the Multistate Tax Commission created by the Compact had such provisions in their

state constitutions. 121 Sophisticated parties, in particular, are presumed to know the law. Brekke

v. THM Biomedical, Inc., 683 N.W.2d 771, 782-83 (Minn. 2004) (Gilbert, J., dissenting). In

addition, the "settled law of the land at the time a contract is made become[ s] part of it and must

be read into it except where the contract discloses an intention to depart therefrom." William

Lindeke Land Co. v. Kalman, 190 Minn. 601, 607,252 N.W. 650, 653 (1934).

Considering that the Compact was developed "under the auspices of the Council of State

Governments, with the cooperation of the National Association of Tax Administrators, the 122 National Association of Attorneys General and the National Legislative Conference," it is

unreasonable to suppose that state constitutional limitations upon contracting away the taxing

power were not raised and considered during the Compact's drafting. Put another way, it is

unlikely that state tax administrators and attorneys general would have drafted an agreement:

(1) that many States had questionable authority to enact; and (2) that, immediately upon enactment

12 ° Comm'r's Mem. Supp. Summ. J. 16 n.12 (listing the other states as Alaska, Arkansas, California, Hawaii, Illinois, Michigan, Missouri, Montana, North Dakota, South Dakota, Texas, Washington, and Wyoming). 121 Ex. J36, at KC11435 (Arkansas, Illinois, Missouri, Texas and Washington). 122 Ex. J30, at KC11496.

45 in such states, would be subject to challenge on the ground that it had unlawfully contracted away

the state's taxing power. 123 An agreement that was either void ab initio or ultimately unenforceable

against approximately one third of all States would hardly have advanced the States' contemplated

objective of appeasing Congress. Indeed, the States would likely have concluded that uniformity

could better be achieved by creating an agreement that all States had clear authority to enact, even

if some party States might later alter certain of the Compact's provisions or withdraw from the

agreement altogether.

As an aside, we cannot agree with Kimberly's argument that the Compact must have

deprived states of their power to alter the apportionment election, because only a mandatory

election could be expected to stave off congressional intervention. 124 This argument makes little

sense considering that Article X(2) of the Compact expressly permits party States to completely

withdraw from the agreement at any time. Even if the States hoped federal intervention might be

avoided if Congress perceived the Compact as a viable means of increasing state tax uniformity,

they had no reason to believe that Congress would have considered alteration of the apportionment

election as a greater threat to uniformity than complete withdrawal from the agreement. Either

way, party States could avoid ihe election and defeat the uniformity at the heart of Congressional

concern.

123Here, citing Minnesota Constitution Article X, section 1, the Commissioner argues both that the Legislature could not lawfully have enacted an agreement obligating the State to refrain from altering the apportionment election and that, if the Contract did create such an obligation, its enactment was void ab initio. Comm'r's Mem. Supp. Summ. J. 15-16; Comm'r's Reply Mem. Supp. Summ. J. 2-3. 124 Kimberly's Mem. Supp. SUmm. J. 21-22 & n.6.

46 b. Course of Performance Before Minnesota Enacted the Compact

We need not decide, however, whether the Compact as originally drafted in 1966 and

enacted by numerous States in 1967 was intended to surrender party States' sovereign taxing

powers. For the Minnesota Legislature did not enact the Compact until 1983, over fifteen years

after it first became effective. By that time, party States operating under the Compact had clearly

manifested their understanding that they retained sovereign authority to alter or eliminate the

Compact's apportionment election.

When an interstate compact provision is ambiguous, courts may consider extrinsic

evidence including the party States' course of performance. Tarrant, 133 S. Ct. at 2132, 2135.

Course of performance refers to the actions of parties during performance of the contract at issue.

Cut Price Super Mkts., 256 Minn. at 354, 98 N.W.2d at 268. Evidence of course of performance

is useful because it demonstrates the parties' practical construction of the terms of a contract, which

is probative oftheir intent. Cornell v. NF.C. Eng'g Co., 274 Minn. 391,395-96, 144 N.W.2d 369,

372 (1966). 125 "A 'part[y's] course of performance under the Compact is highly significant'

evidence of its understanding of the compact's terms." Tarrant, 133 S. Ct. at 2135 (alteration in

original) (citation and internal quotation marks omitted).

125 Although not expressly invoking the concept "course of performance," other Minnesota cases similarly recognize that the parties' own construction of an ambiguous contract term is highly probative of its intended meaning. See Brachmann v. Netzinger, 293 Minn. 405,407, 196 N.W.2d 616,618-19 (1972) (commenting with respect to ambiguous option agreement that "parol evidence concerning the parties' interpretation of the [agreement's] language must control in determining their understanding"); Kastner v. Dalton Dev., Inc., 265 Minn. 511, 517, 122 N.W.2d 183, 187 (1963) (where the p~ies had agreed "that the option [to purchase] must be exercised on the entire 23 lots," the court noted that "the rule is that the interpretation placed upon the contract by the parties themselves is to be considered by the court, and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms").

47 The Compact became effective on August 4, 1967, after it was enacted into law by seven

states, 126 one of which was Florida. 127 See Fla Stat. § 213.15 ( 1969). In December 1972, however,

Florida enacted legislation: ( 1) repealing Articles III and IV of the Compact; and (2) adopting as

a matter of Florida law an equally-weighted three-factor apportionment formula. See§ 1, 1971

Fla. Laws at 52. In response to Florida's repeal of Articles III and IV, no party State alleged a

violation of the Compact. To the contrary, during a Multistate Tax Commission meeting held on

December 1, 1972, the party States unanimously passed a resolution (with Florida abstaining)

providing that whereas "the State of Florida has repealed Articles III and IV of the Multistate Tax

Compact, while still legislatively, adhering to the spirit of the compact;" and whereas "the State

of Florida will continue to strive together with tax administrators, national tax groups, and

representatives of the business community to develop new and additional methods of resolving

multistate tax problems;" therefore "be it resolved that the State of Florida be recognized as a

regular member in good standing of the Multistate Tax Compact and the Multistate Tax

128 Commission." The meeting minutes note that "associate member[] Minnesota . . . had been

129 taking part in the meeting during the week." By late 1972, then, party States-both individually

and collectively through the Multistate Tax Commission-had unanimously concluded and

publicly declared that Florida, a party State that originally enacted Articles III and IV, remained a

Compact member in good standing despite its subsequent repeal of those two Articles.

126 Ex. 136, at KC11433. 127 Ex. 136, at KC11445. 128Ex. 143, at MDOR 00015 (Minutes of Meeting of the Multistate Tax Commission, Dec. 1, 1972). 129 Ex. 143, at MDOR 00014.

48 Party States soon had further occasion to indicate their understanding of the Compact's

effect on their sovereign powers. In 1972, the United States Steel Corporation sued the Multistate

Tax Commission "its individual Commissioners, and its Executive Director," challenging the

constitutionality of the Compact on four stated grounds. US. Steel, 434 U.S. at 458. In its 1977

brief to the United States Supreme Court, the Commission addressed, among other things, its

understanding of the Compact's effect on the sovereign taxing power of party States: "Individual

member states of the Compact retain exclusive control over any and all legislation or

administrative actions including (i) the rate of tax; (ii) what is included in any tax base, such as

what constitutes taxable income or lawful deductions therefrom for income tax purposes; and

(iii) the means and methods of determining any tax liability and of collecting any taxes which may 130 be determined to be due .... " The Supreme Court plainly credited this statement by the

Commission, for it commented that "individual member States retain complete control over all

legislation and administrative action affecting the rate of tax, the composition of the tax base

(including the determination of the components of taxable income), and the means and methods

of determining tax liability and collecting any taxes d~termined to be due." ld at 457.

Approximately twenty years later, the Supreme Court likewise credited an agency's

interpretation of the multistate compact it administered. In Alabama v. North Carolina, eight states

including Alabama and North Carolina entered into the Southeast Interstate Low-Level

Radioactive Waste Management Compact, which provided for the development of a new facility

for the long-term disposal of low-level radioactive waste generated in the region. 560 U.S. at 334.

The Compact was administered by a Commission composed of two voting members from each

party State. ld North Carolina was designated to "host" the new facility, and thus became

130 Ex. 154, at MDOR 03903.

49 obligated by the compact to "take appropriate steps" to obtain a license to construct and operate

the contemplated facility. !d. at 335.

Although the compact specifically provided that the Commission was not responsible for

any costs associated with creating the new facility, North Carolina "asked the Commission for

financial assistance with building and licensing costs." Alabama, 560 U.S. at 335. "The

Commission responded by adopting a resolution, which declared it was both 'appropriate and

necessary' for the Commission 'to provide financial assistance' to North Carolina." !d. (quoting

record). Thereafter, the Commission provided North Carolina with approximately $80 million in

financial assistance towards obtaining licensing. Id at 336-37. After South Carolina withdrew

from the agreement, and North Carolina and the Commission reached an impasse concerning a

long-term fmancing plan, North Carolina "informed the Commission it would commence an

orderly shutdown of its licensing project." Id

Several party States, joined by the Commission, filed a complaint against North Carolina

alleging, among other things, that North Carolina had breached the compact because it was no

longer taking "appropriate steps" to obtain licensing. Alabama, 560 U.S. at 338, 345. After

concluding that the compact term "appropriate steps" was ambiguous, the Court looked to the

parties' course of performance to ascertain its meaning: "In determining whether, in terminating

its efforts to obtain a license, North Carolina failed to take what the parties considered 'appropriate'

steps, the parties' course of performance under the Compact is highly significant." !d. at 346.

Such evidence "firmly establishes that North Carolina was not expected to go it alone .... The

history of the Compact consists entirely of shared financial burdens." Id

50 There is nothing to support the proposition that the other States had an obligation under the Compact to share the licensing costs through the Commission; but we doubt that they did so out of love for the Tarheel State. They did it, we think, because that was their understanding of how the Compact was supposed to work. One must take the Commission at its word, that it was "appropriate" to share the cost-which suggests that it would not have been appropriate to make North Carolina proceed on its own.

Id (emphasis added).

Taken together, U.S. Steel and Alabama v. North Carolina demonstrate that the United

States Supreme Court places considerable weight on the manner in which a representative

commission interprets the interstate compact it is charged with administering. Naturally, such

evidence cannot be used to contradict a compact's plain meaning. Kansas v. Colorado, 514

U.S. 673, 690-91 (1995). When a contested term is ambiguous, however, course of performance

evidence, including the interpretation of a representative administrative commission, is highly

significant. Tarrant, 133 S. Ct. at 2135.

The U.S. Steel Court plainly took the Multistate Tax Commission "at its word" concerning

the Compact's effect on the sovereignty of party States. Closely paraphrasing the Commission's

appellate brief, the Court concluded not only that the States had "retain[ed] complete control over

all legislation ... affecting the rate of tax, the composition of the tax base ... , and the means and

methods of determining tax liability ... ," U.S. Steel, 434 U.S. at 457, but also that the States had

delegated no sovereign power to the Commission itself, Id at 4 73.

By 1979, then, the Compact's party States had expressly declared in the United States

Supreme Court their understanding that the Compact did not abridge their taxing powers. In

addition, the Supreme Court had adopted this understanding of the Compact. Consequently,

following the 1979 publication of U.S. Steel, the Compact could not reasonably be understood as

requiring party States to contract away sovereign powers.

51 We note that Minnesota's own enactment of the Compact in 1983 indicates that the

Minnesota Legislature, in particular, did not consider itself bound to adopt the Compact's

allocation and apportionment provisions. When enacting section 290.171, Minnesota omitted

from the Model Act (as drafted in 1966) five of Article IV's eighteen sections. Article IV(4) of

the Model Compact provides that "[r]ents and royalties from real or tangible personal property,

capital gains, interest, dividends or patent or copyright royalties, to the extent that they constitute

nonbusiness income, shall be allocated as provided in paragraphs 5 through 8 of this Article." 131

Minnesota omitted this Model Compact allocation provision from section 290.171, along with

Articles IV (5)-(8), which facilitate its implementation. Thus, whereas Article IV of the Model

Compact contained eighteen sections, Article IV of section 290.171 had only thirteen sections. 132

The Minnesota Legislature's conclusion that it was free to enact only certain portions of Article

IV manifests its understanding that member States were free to adopt or alter the Compact's

allocation and apportionment provisions as they saw fit.

By 1979, the Compact's existing party States had clearly and consistently manifested their

understanding that they retained sovereign authority to alter or eliminate the Compact's

apportionment and allocation provisions. Consequently, we conclude that by the time Minnesota

enacted section 290.171 in 1983, the Compact could not reasonably be understood as contractually

requiring party states to refrain from using their sovereign powers to alter the apportionment

election.

131 Ex. J32, at KC11508. 132 Compare Ex. J32 at KC11507-10 with Minn. Stat.§ 290.171, Art. IV (1984).

52 c. Course of Performance after 1983

Although the Compact's drafting history and the party States' pre-1983 course of

performance are most relevant to our conclusion that the Legislature's 1983 Compact enactment

did not constitute a relinquishment of the State's sovereign power to alter the apportionment

election, the party States' subsequent course of performance is fully consistent with that

conclusion.

As previously noted, the version of the Compact Minnesota enacted in 1983 omitted

Articles IV(4)-(8) of the Model Compact governing the allocation of nonbusiness income. 133

Despite this alteration of Article IV, the Multistate Tax Commission admitted Minnesota as a full

member ofthe Commission. 134 Perhaps more significantly, the Commission allowed Minnesota

to remain a full member even after it repealed Articles III and IV in 1987. 135 Indeed, then-

Minnesota Commissioner of Revenue John James was Vice-Chair of the Multistate Tax

Commission for fiscal year 1988, and was its Chair for fiscal year 1989. 136

The Commission has similarly treated other party States that have eliminated or altered the

election. In a 2013 amicus curiae brief filed in the California Supreme Court (supporting the State

of California's claim that-despite its enactment of the Compact in 1974-the State retained

lawful authority to abrogate the apportionment election), the Commission indicated that as of

October 2012,

133 Compare Ex. J32 at KC11507-10 with Minn. Stat.§ 290.171, Art. IV (1984). 134 Stip., 23; Ex. J40, at 12 (Sixteenth Annual Report, Multistate Tax Commission). 135 Stip. ~, 23-24; Ex. J42, at 3 (Annual Report FY11-12, Multistate Tax Commission); Huddleston Aff. ~ 10; Getschel Aff. ,, 3, 7-8. 136 Huddleston Aff. ~ 11; Ex. J41, at 7.

53 nine other compact members had enacted a version of the Multistate Tax Compact that ... emphasizes the sales factor and does not recognize an Article III.1 election [to use the Compact's equally weighted apportionment formula]. Three Compact members [including Minnesota] eliminated or limited the election directly. Three. amended Article IV to be consistent with their statutory apportionment formula that emphasizes the sales factor. And three, like California, indicted by separate statute or other guidance that the Compact election does not apply to factor-weighting. 137

The Commission further noted that "[i]n no case has any compact member in any way objected

that such an action was inconsistent with the letter or spirit of the Compact." 138

The record indicates that the Commission has "never sanctioned or expelled a state that

amended or repealed Articles III and IV. To the contrary, states that repealed Articles III and IV

remained members in good standing with the Multistate Tax Commission." 139 The Commission's

137 Ex. 157, at 03891 (footnotes omitted); see also id. at 03896 ("Since 1972, at least ten additional members, including California, have varied from Articles III.1 and IV by enacting mandatory apportionment formulae other than the Article IV equally-weighted formula, without allowing an Article III.1 election.") (footnote omitted). 138 Ex. 157, at 03896; see also Huddleston Aff. ,, 6-7 (indicating that neither the MTC nor any party state ever objected to a repeal of Articles III or IV). In response to a parallel invocation of the Compact election by IBM in Michigan, three dissenting Justices similarly noted: [I]t is plain that the member states did not view strict adherence to Articles III and IV as a binding contractual obligation, as Compact members have deviated from the Compact's election provision and apportionment formula without objection from other members .... Nondeviating members have not pursued actions against those states that have deviated, and no member state has intervened on IBM's behalf in this case. Further, the Multistate Tax Commission-the organization charged with administering the Compact-has urged us to reject IBM's rigid interpretation of the Compact. These facts weigh heavily in favor of rejecting IBM's argument that the Compact creates a binding contractual obligation on its member states to refrain from amending the election provision. IBM, 852 N.W.2d at 888 (McCormack, J., dissenting) (citation omitted). Because the IBM majority concluded that the Michigan Legislature had never repealed the Compact, id at 872-77, and accordingly that "the Compact's election provision remained in effect" for the tax years in issue, id at 876, the majority had no occasion to consider whether the Compact contractually obligated Michigan not to alter the election and, more specifically, had no occasion to consider the party States' course of performance under the Compact. 139 Huddleston Aff. ,, 8-9.

54 ongoing acceptance of party States that alter or eliminate the Compact's apportionment election,

and its express and public support of State authority to do so, further evidence the party States'

understanding that the Compact does not contractually require them to refrain from using their

sovereign powers to alter the Compact's apportionment election. 140

4. Extrinsic Evidence Conclusion

Leaving aside application of the unmistakability doctrine, the Compact's silence

concerning the surrender of sovereign power renders it ambiguous as to such surrender.

Considering that at least fourteen States have constitutional provisions prohibiting them from

contracting away their taxing power, it is highly unlikely that the state tax officials and attorneys

general who drafted the Compact intended that party States would surrender their sovereign

authority to alter or repeal the apportionment election. Moreover, the party States' course of

performance indicates that by the time Minnesota enacted section 290.171 in 1983, the Compact

could not reasonably be understood as contractually requiring party states to refrain from using

their sovereign powers to alter the apportionment election. We conclude that extrinsic evidence

independently supports the conclusion that the Legislature's 1983 Compact enactment did not

constitute a relinquishment of the State's sovereign power to alter or repeal the Compact's

apportionment election.

140 At some point in time (although on this record we cannot determine exactly when), the Multistate Tax Commission amended the Compact's preface to indicate that it is "a model law," and that it is "not truly a compact in that actions taken under its authority have only an advisory and/or recommendatory effect on its member states." Ex. 144, at 02415. Although these statements are further evidence of the Commission's views concerning the effect of the Compact, we do not rely on them.

55 D. Contracts Clause Claim

The Contract Clause of the United States Constitution provides that "[n]o state shall ... pass

any ... Law impairing the Obligation of Contracts." U.S. Const. art. I,§ 10, cl. 1. The Minnesota

Constitution likewise provides that "[n]o ... law impairing the obligation of contracts shall be

passed." Minn. Const. art. I, § 11.

Whether an enactment unconstitutionally impairs a contract is determined by applying a

three prong test. See Energy Reserves Grp., Inc. v. Kansas Power & Light Co., 459 U.S. 400,

411-13 (1983); U.S. Trust Co. v. New Jersey, 431 U.S. 1, 17-22 (1977); Jacobsen v. Anheuser-

Busch, Inc., 392 N.W.2d 868, 872 (Minn. 1986). The threshold question is whether the challenged

law substantially impairs a contractual relationship. Energy Reserves, 459 U.S. at 411. If so, the

State must demonstrate a "significant and legitimate public purpose" for the statute, "such as the

remedying of a broad and general social or economic problem." /d. at 411-12. Finally, if the State

identifies such a purpose, the court must examine whether "the adjustment of the rights and

responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character

appropriate to the public purpose justifying [the legislation's] adoption." /d. at 412 (alterations in

original) (quoting U.S. Trust Co., 431 U.S. at 22).

The substantial-impairment inquiry focuses on "the extent to which the law has

contravened the reasonable [contract] expectations of the parties." Lipscomb v. Columbus Mun.

Separate Sch. Dist., 269 F.3d 494, 506 (5th Cir. 2001); see ·also Acton Const. Co. v. Comm 'r of

Revenue, 391 N.W.2d 828, 833 (Minn. 1986); Drewes v. First Nat. Bank of Detroit Lakes, 461

N.W.2d 389, 391 (Minn. App. 1990). Kimberly asserts that by enacting the Compact, Minnesota

"committed to provide multistate taxpayers with the election to apportion under the Compact

unless and until [it] withdrew from the Compact" and, consequently, that taxpayers reasonably

56 expected "that the Compact's terms w[ould] not be amended on a piecemeal basis." 141 From these

premises, Kimberly concludes that "the 1987 Amendment's attempt to eliminate the Compact 142 election [wa]s a substantial impairment of the entire Compact." We disagree.

As previously indicated, we have assumed (without deciding) that the Compact is a

contract that created binding obligations. See supra§ V.C.l. Moreover, the Commissioner has

acknowledged, and we agree, that the State was bound to honor the Compact's apportionment

election while Articles III and IV remained in force. 143 See supra§ V.C.2.c. We have concluded,

however that no Compact provision constitutes a clear and unmistakable promise by the State to

refrain from using its sovereign power to alter or repeal the apportionment election contained in

Articles III and IV. See supra § V .C.2.c. Absent such an obligation, taxpayers could have no

reasonable expectation that the Legislature would not alter or eliminate the election.

Consequently, the Legislature's 1987 repeal of Articles III and IV did not substantially impair a

contractual relationship. Energy Reserves, 459 U.S. at 411. We need go no further in the analysis.

See Acton Const., 391 N.W.2d at 833 (so holding).

For the foregoing reasons, we conclude that Kimberly has failed to carry its heavy burden

to prove beyond a reasonable doubt that the Legislature's 1987 repeal of Articles III and IV was

unconstitutional as a violation of the state and federal contracts clauses. See, e.g., Singer, 817

N.W.2d at 675. Because this ruling fully resolves the matter, we need not address the parties'

remaining contentions.

B.S.D & T.G.H.

141 Kimberly's Mem. Supp. Summ. J. 32. 142 Kimberly's Mem. Supp. Summ. J. 32. 143 Comm'r's Reply Mem. Supp. Summ. J. 7.

57 TURNER, C.J. (concurring specially)

I respectfully concur in all but section III of the court's opinion.

I agree that in enacting the Compact in 1983, Minnesota in no way agreed not to alter or

repeal the three-factor equally weighted apportionment election. I further agree that determination

resolves both Kimberly's Compacts Clause claim and its Contracts Clause claim.

But I believe a section of an opinion specifically labeled "The Parties' Principal

Contentions" and which purports to reference the parties' briefs in doing so, should recite those

contentions and cite those briefs accurately. The court's opinion does not follow this principle.

For example, the opinion states that appellants contend that the Compact requires Minnesota "to

refrain from exercising its sovereign power to eliminate the apportionment election unless and

until it first withdraws from the Compact." Slip op. at 16 (citing Kimberly's Mem. Supp. Summ. J.

10, 12, 16, 30; Kimberly's Reply Mem. Supp. Summ. J. 1-2, 4); see also slip op. at 16 (claiming

that appellants contend that Minnesota "contractually obligated itself both to furnish the

apportionment election and to refrain from using its sovereign power to repeal the election"). Not

even the careful reader will find any mention on any of the cited pages of the phrase "sovereign

power" or much of anything, for that matter, like the opinion's recitation of Kimberly's

contentions. The opinion goes on to state that appellants "implicitly acknowledg[e] that a State's

contractual surrender of sovereign power normally must be stated in unmistakably clear language."

Slip op. at 16 (citing Kimberly's Mem. Supp. Summ. J. 17; Kimberly's Reply Mem. Supp. Summ.

J. 5, 7; Tr. 100-01, 111). There is no such acknowledgment, implicit or explicit, on any ofthe

cited pages. Indeed, many pages later, the opinion concedes that Kimberly in fact "avoids directly

stating that Minnesota surrendered sovereign power to alter or repeal the [apportionment]

election." Slip op. at 37 n.106.

58 I agree wholeheartedly that a court is entitled to "critically evaluat[e] a litigant's

submissions" and to "plainly stat[e] the true import of [the litigant's] arguments." Slip op.

at 37 n.l 06. But in doing so, a court should clearly distinguish between its own editorializing and

the litigant's actual submissions. Because of this opinion's failure to do so, I respectfully decline

to concur in section III.

J.H.T.