For over 50 years, Bloomberg Tax’s renowned flagship daily news service, Daily Tax Report® has helped leading practitioners and policymakers stay on the cutting edge of taxation and...
Oct. 11 — The U.S. Supreme Court won’t consider the leading case among corporate challenges to five states preventing them from using the income apportionment formula in the Multistate Tax Compact, but may get another request as other cases reach the justices ( Gillette Co. v. Cal. Franchise Tax Bd., U.S., No. 15-1442, 10/11/16 ).
The court’s denial Oct. 11 of a petition for review from Gillette Co., its corporate parent Procter & Gamble Manufacturing Co.; Kimberly-Clark Worldwide Inc.; and Sigma-Aldrich Inc. lets stand a 2015 California Supreme Court ruling against the companies.
The California court ruled in December in favor of the Franchise Tax Board that the state could enforce its statutory apportionment formula over the compact’s formula, despite the state’s adoption of the compact. With the issue being litigated in at least four other states, at least $3 billion in corporate tax payments across the country are at stake, according to the companies.
In California, the FTB will begin to address the thousands of taxpayers who have about $750 million in refund claims on hold while the case was pending.
“We are gratified that the Supreme Court agreed with California and brought an end to this litigation,” FTB spokesman Chris Smith told Bloomberg BNA in an Oct. 11 e-mail. “The Franchise Tax Board is developing guidance for any potentially affected taxpayers, and will release that shortly.”
Nationally, the Supreme Court’s denial without comment wasn’t a surprise to court watchers and tax practitioners, some of whom predicted the court wouldn’t take the case for lack of a federal question.
“The petitioners tried to convince the court that there was a federal question beyond the issues with which the state courts had dealt, namely a broader national issue of compact law,” the tax and accounting firm of Ernst & Young LLP said in a prepared statement to Bloomberg BNA Oct. 11. The Supreme Court “seldom addresses state tax issues and this was one more case that the court decided not to hear.”
However, the issue of whether Multistate Tax Compact member states can require corporations to use an income apportionment formula that differs from the formula in the compact may come back to the court in pending appeals related to cases from Oregon, Minnesota, Michigan or Texas. Minnesota has until Oct. 20 to ask the U.S. Supreme Court to review a June decision from that state’s high court in favor of the Minnesota Commissioner of Revenue ( (187 DTR K-2, 9/27/16)).
Multistate Tax Commission General Counsel Helen Hecht told Bloomberg BNA in an Oct. 11 e-mail that the review denial confirms the MTC’s position that no federal question was at issue, but also has no impact on the other cases still pending.
Other tax attorneys watching the case agreed.
“The litigation going on in other states involves state-specific issues,” Richard D. Pomp, professor at the University of Connecticut School of Law, told Bloomberg BNA in an Oct. 11 e-mail. “That litigation will run its course, unaffected by the denial of cert.”
Joseph D. Henchman, vice president of legal and state projects at the Washington, D.C.-based Tax Foundation, said a Supreme Court review would have been a welcome end to litigation and could have clarified the uncertain role of the compact.
“We now have a California Supreme Court opinion that’s at odds with the general understanding of compacts, and other cases in various stages of being appealed,” he said. “We also have a Multistate Tax Commission that is a compact when it wants to be and an advisory committee when it wants to be.”
Charles A. Rothfeld, an attorney with Mayer Brown in Washington representing Gillette and the corporate plaintiffs, declined to comment Oct. 11.
Gillette and the other companies filed their lawsuit in 2010, seeking $34 million in refunds. The California trial court ruled against the companies, but an appellate court ruled in their favor in July 2012. The pendulum swung back in the state’s favor on appeal to the California Supreme Court, and the U.S. Supreme Court has affirmed that swing.
For its part, the FTB argued the compact is an advisory agreement, and not a binding, all-or-nothing proposition that they must maintain every aspect of the compact or renounce all of it by repealing it.
The Gillette ruling bolsters recent rulings in Michigan, Minnesota, Oregon and Texas that have undermined the corporate taxpayers’ argument that the compact is a binding contract, with several courts ruling it is merely advisory.
To contact the reporter on this story: Laura Mahoney in Sacramento, Calif., at LMahoney@bna.com
To contact the editor responsible for this story: Ryan C. Tuck at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)