supreme court

On October 11, 2016, TEI filed an amicus brief with the U.S. Supreme Court in Dot Foods, Inc. v. State of Washington, Department of Revenue, No. 16-308. The petition seeks review of the Washington Supreme Court's decision in Dot Foods, Inc. v. State of Washington, Department of Revenue, 372 P.3d 747 (Wash. 2016) ("Dot Foods II"). Dot Foods II upholds 2010 legislation amending Washington's business and occupation tax in response to the Washington Supreme Court's decision regarding the interpretation of a statute in Dot Foods, Inc. v.

On June 30, 2016, TEI filed an amicus brief with the U.S. Supreme Court in The Gillette Company v. California Franchise Tax Board, No. 15-1442, also known as the California Multistate Tax Compact ("Compact") litigation. In the 1960s and 1970s, States persuaded Congress and the business community that then-imminent federal legislation mandating uniformity in state taxation was unnecessary because a number of States had enacted the Compact.

On October 13, 2015, the U.S. Supreme Court issued an order following TEI's recommendation to issue a "GVR order" in First Marblehead v. Massachusetts Commissioner of Revenue. First Marblehead involves the proper apportionment of financial institution's income under Massachusetts' financial institutions excise tax under the dormant Commerce Clause.

On July 2, 2015, TEI filed an amicus brief with the U.S. Supreme Court in a Massachusetts case challenging the application of the internal consistency test, First Marblehead Corp. v. Massachusetts Commissioner of Revenue, No. 14-1422. First Marblehead involves the proper apportionment of financial institution's income under Massachusetts' financial institutions excise tax.

On May 18, 2015, the United States Supreme Court issued a decision in Comptroller v. Wynne, holding that Maryland's personal income tax- which did not offer its residents a full credit for income taxes paid to other states on income they earned in those states - was unconstitutional. The majority opinion (5-4), authored by Justice Alito, held that the tax violated the dormant Commerce Clause because it discriminated against interstate commerce. Justices Scalia, Thomas, and Ginsburg authored dissenting opinions on varying grounds.

On September 26, 2014, TEI filed an amicus brief with the U.S. Supreme Court in a case involving the limitations imposed by the federal Commerce Clause on a state's ability to tax business income earned outside the borders of that state (Comptroller v. Wynne). In a line of cases beginning with Complete Auto Transit v. Brady, the Court has consistently held that corporate income earned in multiple jurisdictions must be apportioned, with the domiciliary state taxing only its fair share.

On October 26, 2012, TEI filed an amicus brief with the U.S. Supreme Court in a case involving the characterization of income from the sale of assets as apportionable business income versus allocable nonbusiness income for state tax purposes, Kimberly-Clark v. Alabama Department of Revenue. The Institute's brief urged the high court to reverse lower court decisions in Alabama holding that gain from the sale of property used in a taxpayer's unitary business constituted nonbusiness income allocable in full to Alabama.

On June 1, 2011, the Institute filed an amicus brief urging the U.S. Supreme Court to overturn a lower court decision allowing Iowa to tax corporations with no physical presence in the State, KFC Corporation v. Iowa Department of Revenue. The core issue in this case is whether the Commerce Clause of the United States Constitution prohibits a State from imposing its corporate income tax on businesses with no connection to the State other than having customers located there.

On March 24, 2010, TEI filed an amicus brief with the U.S. Supreme Court in Johnson Controls v. Kentucky. TEI argued that Kentucky legislation retroactively eliminating a taxpayer's ability to claim tax refunds undermines protections afforded by the Due Process Clause and raises fundamental questions about the availability of remedies.

TEI's brief was prepared under the aegis of TEI's State and Local Tax Committee. TEI Tax Counsel Daniel B. De Jong coordinated the preparation of the brief and was its principal author.

On April 28, 2009, TEI filed an amicus brief with the U.S. Supreme Court in support of the taxpayer in Geoffrey, Inc. v. Massachusetts Department of Revenue. In Geoffrey, the Massachusetts Supreme Judicial Court concluded substantial nexus could be established where a taxpayer's only business in the state was licensing intangible property that generates income for the taxpayer. TEI maintains the Massachusetts court erred by concluding the bright-line, physical presence test embraced by the U.S.