The opinion
IN THE OREGON TAX COURT
REGULAR DIVISION
Corporation Excise Tax
ORACLE CORPORATION AND )
SUBSIDIARIES, )
)
Plaintiff, ) TC 5340
v. )
)
DEPARTMENT OF REVENUE, STATE )
OF OREGON )
)
Defendant. ) ORDER GRANTING RECONSIDERATION
The court’s Order on Partial Summary Judgment dated December 16, 2020, denied each
party’s motion for partial summary judgment. Taxpayer’s 1 motion asked the court to determine
that ORS 317.267(3) requires the Dividends and Subpart F Income to be included in the sales
factor of the apportionment formula. The court denied Taxpayer’s motion, and neither party has
asked the court to reconsider that conclusion.
The Department’s motion asked the court to determine that ORS 314.665(6)(a) requires
Taxpayer to exclude the Dividends and Subpart F Income from the sales factor. The order
reached two conclusions on the Department’s motion. First, the order concluded that
“ORS 314.665(6)(a) does not apply to the unsubtracted portion of Taxpayer’s Subpart F Income
1
This order uses defined terms, abbreviations, and editions of relevant statutes as specified in the Order on
Partial Summary Judgment (on Reconsideration) of even date herewith.
ORDER GRANTING RECONSIDERATION TC 5340 Page 1 of 3
because there are no ‘gross receipts’ that constitute or match to Taxpayer’s Subpart F Income
* * *.” Oracle Corporation and Subsidiaries v. Dept. of Rev., ___ OTR___ (Dec 16, 2020) (slip
op at 34). The court refers to this issue as the “Gross Receipts Issue.” Both parties seek
reconsideration of the Gross Receipts Issue. Second, the order determined that “a genuine issue
of material fact exists regarding whether the Dividends arose from Taxpayer’s ‘holding’ of the
CFC stock and if so, whether under ORS 314.665(6)(a) the Dividends were derived from
Taxpayer’s primary business activity.” (Id.) The court refers to this issue as the “[Holding]
Issue.” The Department seeks reconsideration of the Holding Issue; Taxpayer resists
reconsideration of that issue.
As to the Gross Receipts Issue, the court is persuaded by the authorities cited in the
parties’ briefing on reconsideration, and other authorities, that the conclusion in the
December 16, 2020 order is incorrect. The court will grant reconsideration as to the Gross
Receipts Issue and will include further analysis in a new Order on Partial Summary Judgment
(on Reconsideration), as well as the conclusion that the Subpart F Income is within the definition
of “sales” under ORS 314.610(7).
As to the Holding Issue, the court will grant the Department’s motion for reconsideration
and modify its order to conclude that the Dividends and Subpart F Income were excluded from
“sales” as arising from the holding of the CFC stock, but that they may be reincluded in “sales”
if derived from an activity that constitutes the principal business activity of the payor CFC and
the principal business activity of Taxpayer.
For clarity, the text of the December 16, 2020, order is replaced in its entirety with the
text shown in the Order on Partial Summary Judgment (on Reconsideration). Now, therefore,
IT IS ORDERED that Defendant’s Motion for Reconsideration is granted; and
ORDER GRANTING RECONSIDERATION TC 5340 Page 2 of 3
IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration Concerning
Definition of Gross Receipts for Sales Factor Purposes is granted.
Dated this 6th day of October, 2021.
Signed: 10/6/2021 12:29 PM
_____________________________________
ORDER GRANTING RECONSIDERATION TC 5340 Page 3 of 3