context: While Pennsylvania's scheme will no doubt produce constitutional results in some instances, the practical effect of such a scheme on other occasions is the unconstitutional taxation of out-of-state value and impermissible double taxation. In my judgment, the complete absence of the subsidiaries from the apportionment formula makes it facially apparent that the Pennsylvania statute reaches beyond constitutional limits and taxes value outside its borders.
citation_a.signal: see
citation_a.parenthetical: apportionment formula must be rationally related, both on its face and in its application, to values connected with the taxing state
citation_a.sentence: See Norfolk & Western, 390 U.S. at 325, 88 S.Ct. 995 (apportionment formula must be rationally related, both on its face and in its application, to values connected with the taxing state); see also Armco Inc. v. Hardesty, 467 U.S. 638, 644-45, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984) (a tax that unfairly apportions income from other states is a form of discrimination against interstate commerce, and discrimination can be proved from the face of the tax statute); cf. Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996) (quoting Oregon Waste Systems, Inc. v. Dep’t of Envtl. Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)) (“State laws discriminating against interstate commerce on their face are ‘virtually per se invalid.’ ”); Trinova Corp. v. Michigan Dep’t of Treasury, 498 U.S. 358, 374, 111 S.Ct. 818, 112 L.Ed.2d 884 (1991) (quoting Jenkins, State Taxation of Interstate Commerce, 27 Tenn. L.Rev. 239, 242 (1960)) (a tax imposed “on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes”); PPG Industries, Inc. v. Commonwealth, Bd. of Finance & Revenue, 567 Pa. 580, 790 A.2d 261, 264 (2001) (holding manufacturing exception to Pennsylvania’s capital stock and franchise taxes unconstitutional because it facially discriminated against interstate commerce).
citation_b.signal: see also
citation_b.parenthetical: a tax that unfairly apportions income from other states is a form of discrimination against interstate commerce, and discrimination can be proved from the face of the tax statute
citation_b.sentence: See Norfolk & Western, 390 U.S. at 325, 88 S.Ct. 995 (apportionment formula must be rationally related, both on its face and in its application, to values connected with the taxing state); see also Armco Inc. v. Hardesty, 467 U.S. 638, 644-45, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984) (a tax that unfairly apportions income from other states is a form of discrimination against interstate commerce, and discrimination can be proved from the face of the tax statute); cf. Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996) (quoting Oregon Waste Systems, Inc. v. Dep’t of Envtl. Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)) (“State laws discriminating against interstate commerce on their face are ‘virtually per se invalid.’ ”); Trinova Corp. v. Michigan Dep’t of Treasury, 498 U.S. 358, 374, 111 S.Ct. 818, 112 L.Ed.2d 884 (1991) (quoting Jenkins, State Taxation of Interstate Commerce, 27 Tenn. L.Rev. 239, 242 (1960)) (a tax imposed “on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes”); PPG Industries, Inc. v. Commonwealth, Bd. of Finance & Revenue, 567 Pa. 580, 790 A.2d 261, 264 (2001) (holding manufacturing exception to Pennsylvania’s capital stock and franchise taxes unconstitutional because it facially discriminated against interstate commerce).