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Constitutional Limitations on State Tax Exportation
Published online by Cambridge University Press: 20 November 2018
Abstract
The notion that there are constitutional limitations on the power of the states to export their tax burdens to residents of other states has been the predicate of recent court challenges to state taxing schemes. The concept of state tax exportation and its implications for constitutional analysis have not, however, been systematically explored by the courts. The economics of state tax exportation suggest that a judicial inquiry into the extent of state tax exportation would be a formidable if not an insuperable task. And the Supreme Court, when recently confronted with an opportunity to constitutionalize a principle of excessive state tax exportation, flatly declined to do so. It is nevertheless possible that the concept of state tax exportation may have a role to play in constitutional analysis as a vague admonition to the states not to transgress some yet to be defined norms of fiscal balance in our federal system.
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- Copyright © American Bar Foundation, 1982
References
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171 That is, the person upon whom the primary legal obligation to pay the tax is imposed.Google Scholar
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183 Production in the taxing state would decline because producers would be willing to supply a particular quantity of coal only if they received a price of $1/ton higher than the price previously sufficient to induce that quantity of supply. Assuming increasing marginal costs of coal production with respect to the relevant quantities involved, the coal producer in the taxing state Would be compelled to curtail its supply in order to cover the effective increase in its marginal costs induced by the tax.Google Scholar
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186 The elasticity of demand (or supply) is a measure of the sensitivity of the quantity of a product desired by consumers (or offered by producers) to a change in the price of that product. More technically, the elasticity of demand is the percentage decrease (increase) in quantity demanded induced by a 1 percent increase (reduction) in price, and the elasticity of supply is the percentage increase (decrease) in quantity supplied induced by a 1 percent increase (decrease) in price. If the elasticity of demand (or supply) is large, demand (or supply) is said to be relatively elastic; conversely, if the elasticity is small, demand (or supply) is said to be inelastic.Google Scholar
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196 See McLure, supra note 194, at 13–15.Google Scholar
197 See text at note 184 supra.Google Scholar
198 Assuming there were other states or industries where the burden of such a tax could be avoided.Google Scholar
199 See note 204 and text accompanying notes 327 and 328 infra.Google Scholar
200 McLure, supra note 194, at 13.Google Scholar
201 See text accompanying notes 254–56 infra.Google Scholar
202 Government regulation of resource prices, for example, may either facilitate tax exportation to out-of-state consumers by permitting a pass-through of severance taxes or restrain it, by requiring producers to bear the burden of such a tax. Cf. Maryland v. Louisiana, 101 S. Ct. 2114 (1981).Google Scholar
203 If states collude, their collective market dominance will increase and with it their potential ability to export their tax burden. See text accompanying notes 183–87 supra.Google Scholar
204 In the Montana severance tax case, it was alleged that out-of-state utilities were required to purchase coal from Montana producers and to reimburse such producers for any severance taxes imposed upon such coal. Complaint of Commonwealth Edison Co. et al., § 13–17, Commonwealth Edison Co. v. Montana, No. 42657 (Dist. Ct. of Lewis and Clark County, 1st Jud. Dist. of Mont., June 20, 1978). See text accompanying notes 269–346 infra.Google Scholar
205 While international competition is an element that should be considered in assessing market dominance, it is sometimes overlooked and therefore warrants mention as a separate factor.Google Scholar
206 [1981] 1 State Tax Guide (All States) (CCH) p. 663 (1981) (chart).Google Scholar
207 [1979] State & Loc. Taxes (All States) (P-H) § 101 (chart).Google Scholar
208 See notes 206 & 207 supra.Google Scholar
209 Id.Google Scholar
210 See McLure, Interstate Exporting, supra note 170, at 59–64.Google Scholar
211 See text accompanying notes 180–205 supra.Google Scholar
212 See text accompanying notes 215–45 infra.Google Scholar
213 McLure, Interstate Exporting, supra note 170, at 57, 59; Phares, supra 172, at 30–36.Google Scholar
214 McLure, Interstate Exporting, supra note 170, at 59.Google Scholar
215 Id. at 54; Phares, supra note 172, at 37.Google Scholar
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217 See text accompanying notes 236–45 infra.Google Scholar
218 See text at note 174 supra.Google Scholar
219 McLure, supra note 216, at 395.Google Scholar
220 See id. at 395–397.Google Scholar
221 Id. at 398.Google Scholar
222 Id. at 401.Google Scholar
223 See Hellerstein & Hellerstein, supra note 57, at 399–400.Google Scholar
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225 See text accompanying notes 236–45 infra.Google Scholar
226 McLure, supra note 216, at 402.Google Scholar
227 See Hellerstein, Walter, Construing the Uniform Division of Income for Tax Purposes Act: Reflections on the Illinois Supreme Court's Reading of the “Throwback” Rule, 45 U. Chi. L. Rev. 768, 771–74 (1978).Google Scholar
228 See text accompanying notes 213–14 supra.Google Scholar
229 See Hellerstein, supra note 227, at 775–76.Google Scholar
230 McLure, supra note 216, at 403.Google Scholar
231 See text accompanying notes 181–205 supra.Google Scholar
232 See Hellerstein & Hellerstein, supra note 57, at 478–79.Google Scholar
233 Under separate accounting, the in-state activities of a business are treated separately from the rest of the business. Income is computed as if the activities of the business were confined to the taxing state. See Hellerstein, supra note 128, at 117.Google Scholar
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236 See, e.g., Aaron, Henry J., Who Pays the Property Tax? A New View (Washington, D.C.: Brookings Institution, 1975); Dick Netzer, The Incidence of the Property Tax Revisited, 26 Nat'l Tax J. 515 (1973);Mieszkowski, Peter, The Property Tax: An Excise Tax or a Profits Tax, 1 J. Pub. Econ. 73 (1972).Google Scholar
237 Phares, supra note 172, at 43; McLure, Charles E. Jr., The “New View” of the Property Tax: A Caveat, 30 Nat'l Tax J. 69 (1977). Such consumers would include both the consumers of the goods and services produced by industrial and commercial property as well as consumers (i.e., renters) of residential property. Hence with the exception of taxes on residential property occupied exclusively by its owners (and who thus are consumers of such property), property taxes are generally thought to be susceptible to forward shifting under the “old” view. Phares, supra note 172, at 43.Google Scholar
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239 McLure, supra note 237, at 70 (emphasis in original).Google Scholar
240 Phares, supra note 172, at 44. Netzer, supra note 236, at 518–19.Google Scholar
241 McLure, supra note 237, at 70.Google Scholar
242 McLure, Interstate Exporting, supra note 170, at 61.Google Scholar
243 Id. at 61–64.Google Scholar
244 Phares, supra note 172, at 31–32.Google Scholar
245 The interested reader may pursue these matters further in the sources cited above. See notes 236 & 237 supra and sources cited therein.Google Scholar
246 McLure, supra note 172, at 53–54. McLure explains the latter aspect of the federal offset in the following way:. But in addition to the offsets necessitated by the deducibility of state and local taxes, allowance must be made for the possibility that state and local taxes reduce adjusted gross incomes by being shifted backward and reducing returns to factors. In such a case the burden of the tax is lightened by the existence of the federal income tax. When gross income falls because of a state or local tax, the federal government shares the burden because its income tax receipts fall. Id. at 53.Google Scholar
247 Id.Google Scholar
248 See text accompanying notes 249–58 infra.Google Scholar
249 Richard A. Musgrave & Darwin Daicoff, Who Pays the Michigan Taxes, in Michigan Tax Study Staff Papers 131–83 (Lansing, Mich.: Secretary of Finance, 1958); University of Wisconsin Tax Impact Study Committee, Wisconsin's State and Local Tax Burden (Madison: University of Wisconsin School of Commerce, 1959); Oswald Harvey Brownlee, Estimated Distribution of Minnesota Taxes and Public Expenditure Benefits (Minneapolis: University of Minnesota Press, 1960). These studies are cited both by McLure, supra note 172, at 50 n.5, and by Phares, supra note 172, at 61–62, as representing the important early work in this area.Google Scholar
250 McLure, Interstate Exporting, supra note 170.Google Scholar
251 See, e.g., Phares, supra note 172; Hogan, Timothy D. & Shelton, Robert B., Interstate Tax Exportation and States' Fiscal Structures, 26 Nat'l Tax J. 553 (1973);Shelton, Robert B. & Morgan, William E., Resource Taxation, Tax Exportation, and Regional Energy Policies, 17 Nat. Resources J. 261 (1977).Google Scholar
252 Phares, supra note 172.Google Scholar
253 See, e.g., Thomas A. Eapen & Ann Navarro Eapen, Incidence of Taxes and Expenditures of Connecticut State and Local Governments: Fiscal Year 1967 (1970) (report prepared for the Connecticut State Revenue Task Force), Robert D. Ebel & Robert M. Kamins, Who Pays Hawaii's Taxes? (Social Sciences and Linguistics Institute, 1975), and Darwin Daicoff & Robert H. Glass, Who Pays Kansas Taxes? (Institute for Economic and Business Research, 1978), all cited in Phares, supra note 172, at 62.Google Scholar
254 McLure, Interstate Exporting, supra note 170. The following summary of McLure's findings is taken from id. at 64–69, without citation to individual findings.Google Scholar
255 These high export rates for the corporate income tax may seem inconsistent with the implications of McLure's suggestion that such a tax be analyzed as a composite of taxes imposed on the factors used to apportion corporate income. See text accompanying notes 221–23 supra. McLure observed that “[t]he upshot of this analysis is that a state corporate income tax based on formula apportionment is likely to be borne in large part by residents of the taxing state, in their capacities as consumers, immobile workers, and owners of land and immobile capital.” McLure, supra note 216, at 403. In his earlier study, however, McLure assumed that “taxes on the profits of local industries other than public utilities … fall on owners of capital in both the short run and the long run,” and that taxes on firms with national markets would also be borne in substantial part by profits in both the short and long run especially if the state did not dominate the national market. McLure, Interstate Exporting, supra note 170, at 57. In short, McLure's incidence assumptions in his empirical study, which led to the conclusion that much of the burden of a state corporate income tax is borne by nonresident owners of capital, coupled with the large federal offset for such taxes, may explain the disparity between the empirical findings of his earlier study and the theoretical implications of his more recent analysis.Google Scholar
256 Phares, supra note 172. The following summary of Phares' findings is taken from id. at 64–82, without citation to individual findings.Google Scholar
257 Id. at 74–75.Google Scholar
258 Id. at 66–67.Google Scholar
259 260 U.S. 245 (1922). The following discussion draws from Walter Hellerstein, Constitutional Constraints on State and Local Taxation of Energy Resources, 31 Nat'l Tax J. 245 (1978).Google Scholar
260 1921 Pa. Laws, No. 225, at 479.Google Scholar
261 260 U.S. at 257.Google Scholar
262 Id. at 249–52.Google Scholar
263 Id. at 251–53.Google Scholar
264 See text accompanying notes 62–68 supra.Google Scholar
265 260 U.S. at 259–60.Google Scholar
266 Id. at 261.Google Scholar
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268 Presumably the Court would have invalidated a severance tax that explicitly discriminated against interstate commerce—e.g., one that by its terms was imposed exclusively on resources to be shipped outside the state—regardless of whether the resources had entered the stream of commerce. Cf. Welton v. Missouri, 91 U.S. 275 (1876); see text at note 67 supra.Google Scholar
269 Mont. Code Ann. § 15–35-101 et seq. (1981). The tax is imposed “on each ton of coal produced in the state.” Id. § 15–35-103. It is measured by the value or “contract sales price” of the coal, which means “the price of coal extracted and prepared for shipment f.o.b. mine, excluding the amount charged by the seller to pay taxes paid on production.” Id. § 15–35-102(1). The rate of the tax varies from 3 to 30 percent depending on the value and energy content of the coal and the method of extraction. Id. § 15–35-103. Substantially all of the coal involved in the case was alleged to be subject to the 30 percent rate, see Complaint of Commonwealth Edison Co. et al., § 24, Commonwealth Edison Co. v. Montana, No. 42657 (Dist. Ct. of Lewis and Clark County, 1st Jud. Dist. of Mont., June 20, 1978). In fact, however, the effective rate of the tax is lower than the statutory rate because, as indicated above, other taxes paid on production to federal, state, and local governments are excluded in computing the value of the coal to which the severance tax applies.Google Scholar
270 Complaint of Commonwealth Edison Co. et al., Commonwealth Edison Co. v. Montana, No. 42657, (Dist. Ct. of Lewis and Clark County, 1st Jud. Dist. of Mont., June 20, 1978); see also Complaint of Lake Superior District Power Co. et al., Lake Superior Dist. Power Co. v. Montana, No. 42689, (Dist. Ct. of Lewis and Clark County, 1st Jud. Dist. of Mont., June 28, 1978).Google Scholar
271 Complaint of Commonwealth Edison Co. et al., § 20, Commonwealth Edison Co. v. Montana, No. 42657 (Dist. Ct. of Lewis and Clark County, 1st Jud. Dist. of Mont., June 20, 1978).Google Scholar
272 Id. ¶ 22.Google Scholar
273 Id. ¶ 18.Google Scholar
274 Id. ¶ 26.Google Scholar
275 Id. ¶ 27.Google Scholar
276 Id. ¶ 28.Google Scholar
277 No. 42657 (Dist. Ct. of Lewis and Clark County, 1st Jud. Dist. of Mont., July 27, 1979).Google Scholar
278 Mont —, 615 P.2d 847 (1980).Google Scholar
279 449 U.S. 1033 (1980).Google Scholar
280 101 S. Ct. 2946 (1981).Google Scholar
281 See text at note 264 supra.Google Scholar
282 260 U.S. at 259.Google Scholar
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284 Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 443 (1980), quoted in Commonwealth Edison Co. v. Montana, 101 S. Ct. 2946, 2953 (1981).Google Scholar
285 101 S. Ct. at 2953.Google Scholar
286 Id. at 2954 (quoting Commonwealth Edison Co. v. Montana,— Mont. —, —, 615 P.2d 847, 855 (1980)).Google Scholar
287 Id.Google Scholar
288 See note 269 supra.Google Scholar
289 Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938); see text at note 78 supra.Google Scholar
290 Hellerstein, supra note 259, at 249.Google Scholar
291 101 S. Ct. at 2971 (citing id.).Google Scholar
292 Id. at 2954.Google Scholar
293 Id.Google Scholar
294 Id.Google Scholar
295 Id. at 2954–55.Google Scholar
296 See text accompanying notes 280–85 supra.Google Scholar
297 101 S. Ct. at 1954.Google Scholar
298 Id. at 2955 n.8 (citations omitted).Google Scholar
299 Id. at 2955.Google Scholar
300 Id.Google Scholar
301 Id.; see Brief for Appellants at 6, id.Google Scholar
302 101 S. Ct. at 2955.Google Scholar
303 On the assumption that the tax in question substantially affects interstate commerce.Google Scholar
304 101 S. Ct. at 2958 (emphasis in original).Google Scholar
305 Id. at 2958–59 (citations omitted).Google Scholar
306 Id. at 2956 (quoting Commonwealth Edison Co. v. Montana, — Mont. —, —, 615 P.2d 847, 856 (1980)).Google Scholar
307 Id. at 1956–57 (quoting Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 521–22 (1937)).Google Scholar
308 Id. at 2957.Google Scholar
309 Id. at 2958 (emphasis in original).Google Scholar
310 Id. at 2972 (quoting Hughes v. Oklahoma, 441 U.S. 322, 325–26 (1979)).Google Scholar
311 Id. at 2968.Google Scholar
312 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).Google Scholar
313 101 S. Ct. at 2970.Google Scholar
314 Id. at 2968–69.Google Scholar
315 Id. 2971 (citation omitted).Google Scholar
316 Id. at n.16.Google Scholar
317 Id.Google Scholar
318 Id. at 2971.Google Scholar
319 Id. at 2971–72 (citations omitted).Google Scholar
320 See text accompanying notes 259–85 supra.Google Scholar
321 See text at note 105 & note 105 supra.Google Scholar
322 Prior to Commonwealth Edison, the Court had done little more than make perfunctory references to this criterion. See text accompanying notes 135–39 supra.Google Scholar
323 See text accompanying notes 297–98 supra.Google Scholar
324 101 S. Ct. at 2959 (citations omitted).Google Scholar
325 See text at note 307 supra.Google Scholar
326 Id.Google Scholar
327 Id. at 2972.Google Scholar
328 101 S. Ct. at 2955 n.8 (quoting Commonwealth Edison Co. v. Montana, — Mont. —, —, 615 P.2d 847, 856 (1980)).Google Scholar
329 Brief for Appellants at 12, Commonwealth Edison Co. v. Montana, 101 S. Ct. 2946 (1981).Google Scholar
330 See, e.g., John V. Krutilla & Anthony C. Fisher with Richard E. Rice, Economic and Fiscal Impacts of Coal Development: Northern Great Plains (Baltimore, Md: Johns Hopkins University Press, 1978); Comment, An Outline for Development of Cost-based State Severance Taxes, 20 Nat. Resources J. 913 (1980).Google Scholar
331 Id.Google Scholar
332 Id. (citations omitted).Google Scholar
333 Id. (quoting H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534–35 (1949)).Google Scholar
334 See 101 S. Ct. at 2959 n.18; id. at 2972 n.19.Google Scholar
335 See, e.g., S. 2965, 96th Cong., 2d Sess. (1980); H.R. 6625, 96th Cong., 2d Sess. (1980).Google Scholar
336 See Coal Severance Tax: Hearing on S. 2695 Before the Senate Comm. on Energy and Natural Resources, 96th Cong., 2d Sess. (1980); Coal Severance Taxes: Hearings on H.R. 6625, H.R. 6654, and H.R. 7163 Before the Subcomm. on Energy and Power of the House Comm. on Interstate and Foreign Commerce, 96th Cong., 2d Sess. (1980).Google Scholar
337 101 S. Ct. at 2959 n.18.Google Scholar
338 Id. at 2972 n.19.Google Scholar
339 See text accompanying notes 181–205 supra.Google Scholar
340 See text at note 258 supra.Google Scholar
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342 See text accompanying notes 181–205 supra; McLure, Tax Exporting, supra note 170; but see text accompanying notes 327–28 supra.Google Scholar
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344 Brief for Appellants at 8–9, Commonwealth Edison Co. v. Montana, 101 S. Ct. 2946 (1981).Google Scholar
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348 The taxpayers did rely on the Supremacy Clause, U.S. Const, art. VI, cl. 2, in claiming that Montana's severance tax was preempted by federal legislation. The Court unanimously rejected the argument. 101 S. Ct. at 2960–64, 2972 n.21.Google Scholar
349 See text at note 146 supra.Google Scholar
350 Brief for Appellants at 6, Commonwealth Edison Co. v. Montana, 101 S. Ct. 2946 (1981).Google Scholar
351 101 S. Ct. at 2959 n.17 (quoting Magnano Co. v. Hamilton, 292 U.S. 40, 44 (1934)).Google Scholar
352 See text accompanying notes 147–61 supra.Google Scholar
353 See text accompanying notes 150–61 supra.Google Scholar
354 Allied Stores v. Bowers, 358 U.S. 522, 532 (1959) (Brennan, J., concurring).Google Scholar
355 Id. at 533.Google Scholar
356 101 S. Ct. at 2082 n.21.Google Scholar
357 Transcript of Oral Argument at 18, Commonwealth Edison Co. v. Montana, 101 S. Ct. 2946 (1981).Google Scholar
358 Id. at 25.Google Scholar
359 Id. at 28.Google Scholar
360 Id.Google Scholar
361 101 S. Ct. at 2959 n.16.Google Scholar
362 Cf. H.B. 7 introduced in the 1981 session of the Alaska legislature, which proposed the repeal of all state taxes except the income tax on oil and gas corporations.Google Scholar
363 See, e.g., Harry Kalven, Jr., The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev. 1 (1960).CrossRefGoogle Scholar
364 See text accompanying notes 10–44 supra.Google Scholar
365 See text accompanying notes 163–69 supra.Google Scholar
366 See text accompanying notes 334–38 supra.Google Scholar
367 See text accompanying notes 270–365 supra.Google Scholar
368 See text accompanying notes 206–14 supra. The suggestion in the text that consumption taxes are unlikely to give rise to claims of excessive tax exportation is based on the thesis that any taxes that fall predominantly on residents (i.e., voters) will tend not to be excessive. See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 428 (1819).Google Scholar
369 101 S. Ct. 2114 (1981). There was also a substantial preemption issue in Maryland v. Louisiana, see id. at 2128–32, which will not be considered here.Google Scholar
370 La. Rev. Stat. Ann. §§ 47:1301-1307 (West Cum. Supp. 1981) (First Use Tax on Natural Gas); id. § 47:1351 (First Use Tax Trust Fund); id. § 47:647 (severance tax credit); id. § 47:11 (tax credit for electric and natural gas service). The ensuing discussion draws from Walter Hellerstein, State Taxation in the Federal System: Perspectives on Louisiana's First Use Tax on Natural Gas, 55 Tul. L. Rev. 601 (1981).Google Scholar
371 La. Rev. Stat. Ann. § 47:1303(A) (West Cum. Supp. 1981).Google Scholar
372 A taxable “use” was defined as the sale; the transportation in the state to the point of delivery at the inlet of any processing plant; the transportation in the state of unprocessed natural gas to the point of delivery at the inlet of any measurement or storage facility; transfer of possession or relinquishment of control at the delivery point in the state; processing for the extraction of liquefiable component products or waste materials; use in manufacturing; treatment; or other ascertainable action at a point within the state. Id. § 47:1302(8).Google Scholar
373 [1981] 2 State Tax Guide (All States) (CCH) pp. 4501–2.Google Scholar
374 The Outer Continental Shelf Lands Act provides that “[s]tate taxation laws shall not apply to the outer Continental Shelf.” 43 U.S.C. § 1333(a)(2)(A) (Supp. III 1979).Google Scholar
375 The Proposed First Use Tax on Natural Gas: Hearings on H.B. 768 Before the Comm. on Ways and Means of the Louisiana House of Representatives, 4th Reg. Sess. (1978); The Proposed First Use Tax on Natural Gas: Hearings on H.B. 768 Before the Revenue and Fiscal Affairs Comm. of the Louisiana Senate, 4th Reg. Sess. (1978) [hereinafter cited as Senate Hearings].Google Scholar
376 Senate Hearings, supra note 375 (statement of Rep. William Tauzin).Google Scholar
377 Id.Google Scholar
378 La. Rev. Stat. Ann. § 47:1303(B) (West Cum. Supp. 1981).Google Scholar
379 Such as the questions whether the tax had a sufficient nexus with the state, see 101 S. Ct. at 2133 n.27, whether it was fairly apportioned, id., or whether the analogy the state drew to a traditional compensating use tax was a persuasive one. Id. at 2135.Google Scholar
380 Exceptions of the Plaintiff States and Brief in Support of Exceptions at 30, Maryland v. Louisiana, 101 S. Ct. 2114 (1981).Google Scholar
381 La. Rev. Stat. Ann. § 47:647 (West Cum. Supp. 1981).Google Scholar
382 Id. § 47:11(B).Google Scholar
383 Id. § 47:1303(A).Google Scholar
384 Id.Google Scholar
385 Id.Google Scholar
386 Id.Google Scholar
387 Exceptions of the Plaintiff States and Brief in Support of Exceptions at 10, Maryland v. Louisiana, 101 S. Ct. 2114 (1981).Google Scholar
388 “Owner” was defined as. the person or person[s] having title to and the right to alienate the natural gas subject to the tax at the time a use occurs in the state. It shall not include any person to whom temporary possession or control has been transferred. In the event of a sale the purchaser shall be deemed the owner. La. Rev. Stat. Ann. § 47:11302(9) (West Cum. Supp. 1981).Google Scholar
389 Id. § 47:1305.Google Scholar
390 Id. § 47:1303(C).Google Scholar
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392 In most instances, the pipeline company becomes the owner of the gas as it surfaces at the offshore platform. The producer, however, usually retains the right to extract the liquids—ethane, butanes, and propane—from the gas. In these retention contracts, the producer agrees to reimburse the owner for all costs associated with the extraction process.Google Scholar
393 101 S. Ct. at 2133 (quoting Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458 (1959)).Google Scholar
394 Id. at 2134.Google Scholar
395 See text accompanying notes 381–86 supra.Google Scholar
396 101 S. Ct. at 2134.Google Scholar
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399 Id. at 2136.Google Scholar
400 Id. at 2135 (quoting the Report of the Special Master, Second Report, at 34).Google Scholar
401 Exceptions of the Plaintiff States and Brief in Support of Exceptions at 10, Maryland v. Louisiana, 101 S. Ct. 2114 (1981).Google Scholar
402 Id. at 11 (quoting The Proposed First Use Tax on Natural Gas: Hearings on H.B. 768 Before the Comm. on Ways and Means of the Louisiana House of Representatives, 4th Reg. Sess. 37 (1978) (testimony of Ed Steimel)).Google Scholar
403 See text at note 215 supra.Google Scholar
404 See note 367 supra. There may, however, be substantial exporting of personal income taxes to the federal government through the federal offset, see text accompanying notes 236–38 supra, but, as there noted, such exportation is not a concern of this article.Google Scholar
405 See text accompanying notes 162–69 supra.Google Scholar
406 See text accompanying notes 369–402 supra.Google Scholar
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408 Forty states and the District of Columbia have broad-based personal income taxes. [1981] 1 State Tax Guide (All States) (CCH) p. 662. New Hampshire imposes a limited income tax on interest and dividends. N.H. Rev. Stat. Ann. § 77:1 et seq. (1971 & Supp. 1979).Google Scholar
409 N.H. Rev. Stat. Ann. § 77-B:2 II (1971), quoted at 420 U.S. at 658.Google Scholar
410 N.H. Rev. Stat. Ann. § 77-B:2 I (1971), quoted at 420 U.S. at 658.Google Scholar
411 See note 408 supra.Google Scholar
412 See Hellerstein, Walter, Some Reflections on the State Taxation of a Nonresident's Personal Income, 72 Mich. L. Rev. 1309, 1337, 1352 (1974); [1981] State Tax Guide (CCH) (All States) p. 1523.Google Scholar
413 420 U.S. at 666.Google Scholar
414 Department of Revenue v. Association of Washington Stevedoring Cos., 435 U.S. 734, 750 (1978).Google Scholar
415 420 U.S. at 669.Google Scholar
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417 See text accompanying notes 297–98 supra.Google Scholar
418 See text accompanying notes 216–35 supra.Google Scholar
419 See text accompanying notes 222–25 supra.Google Scholar
420 See text accompanying notes 357–62 and 414–16 supra.Google Scholar
421 Alaska Stat. §§ 43.19.010-.050 (1977 & Cum. Supp. 1981), 43.20.021 (Cum. Supp. 1981); see text at note 213 supra.Google Scholar
422 Alaska Stat. § 43.21.010 et seq. (Cum. Supp. 1981).Google Scholar
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424 Alaska Stat. § 43.21.010 et seq. (Cum. Supp. 1981).CrossRefGoogle Scholar
425 See, e.g., Atlantic Richfield Co. v. State of Alaska, No. 3AN-79-1903-Civ. (Super. Ct., 3d Jud. Dist. of Alaska, filed March 21, 1979).Google Scholar
426 Alaska Sess. Laws ch. 116 (S.B. 524), reported inCCH State Tax Review, vol. 42, No. 31, Aug. 3, 1981.Google Scholar
427 See text accompanying notes 112–28 supra; Hellerstein, supra note 128.Google Scholar
428 See text accompanying notes 129–34 supra.Google Scholar
429 See text accompanying notes 147–61 supra.Google Scholar
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433 Cf. Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978) (state regulation discriminating against integrated oil companies not violative of Commerce Clause).Google Scholar
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437 As alleged in one of the documents filed in the litigation challenging Alaska's tax:. The history of Alaska's income taxation of the oil and gas industry … shows graphically how Alaska has altered its pattern of taxation whenever such alteration would increase Alaska's take. Because there was little or no actual production from Prudhoe Bay until mid-1977, Exxon's Alaska operations produced a sizable loss during this time period. Exxon, however, was engaged in substantial exploration and development work, and had significant property interests and payroll in Alaska. The apportionment formula contained in the Net Income Tax thus apportioned a substantial percentage of Exxon's non-Alaska income to Alaska during this period. Between January 1, 1969 and December 31, 1977, Exxon paid $1,111,643 incorporate income taxes to Alaska; in addition, Alaska claims that Exxon owes another $1,835,401 for that period. Prudhoe Bay production commenced in June 1977. Given the now substantial production from the field, Alaska concluded that separate allocation of production and pipeline income, rather than apportionment as provided for in the Net Income Tax, would produce greater tax revenues. Alaska accordingly enacted the Oil Tax Act effective January 1, 1978, and reversed its policy on apportioning production and pipeline income. If counterclaimants were still taxed under the Net Income Tax, counterclaimants would have paid a total of approximately $31 million in income taxes for 1978 and 1979. Instead, counterclaimants paid in excess of $132 million—over $100 million more. Id. at §§ 32–33.Google Scholar
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439 See text accompanying notes 357–63 supra. As indicated in the cited text, I am not suggesting that such a decision could be rationalized on the basis of clearly articulated analytical principles.Google Scholar
440 See text accompanying notes 216–45 & 417–19 supra.Google Scholar
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451 See, e.g., Exxon Corp. v. Wisconsin Dep't of Revenue, 447 U.S. 207 (1980); Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425 (1980); Moorman Mfg. Co. v. Bair, 437 U.S. 267 (1978); Department of Revenue v. Association of Washington Stevedoring Cos., 435 U.S. 734 (1978); National Geographic Soc'y v. State Bd. of Equalization, 430 U.S. 551 (1977); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977); Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976).Google Scholar
452 Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 476 (1959) (Frankfurter, J., dissenting).Google Scholar
453 See Ernest J. Brown, The Open Economy: Justice Frankfurter and the Position of the Judiciary, 67 Yale L.J. 219, 221 (1957). While this observation is generally made in the context of the Court's decisions construing the Commerce Clause, where congressional power to modify the Court's decisions is unquestioned, see note 454 infra; Commonwealth Edison Co. v. Montana, 101 S. Ct. 2946, 2959 (1981), it would seem to be equally true with respect to virtually any issue involving state tax exportation regardless of the constitutional provision in question. Such an issue would almost certainly fall within the scope of congressional power under the Commerce Clause, see id.; Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 101 S. Ct. 2352 (1981). Moreover, if the Due Process or Equal Protection Clause were at issue, Congress' power under § 5 of the Fourteenth Amendment might provide a basis for congressional intervention. See U.S. Const, amend. IV, § 5.Google Scholar
454 See, e.g., Southern Pac. Co. v. Arizona, 325 U.S. 761, 769 (1945); Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 155–56 (1942); South Carolina State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 189–90 (1938).Google Scholar
455 See text at note 346 supra.Google Scholar