Petition for Writ of Certiorari — Star-Kist Foods, Inc. v. County of Los Angeles

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ES NOV %4 \986

JOSEPH F. SPANIOL, JR.

CLERK

In the Supreme court

OF THE

United States

OCTOBER TERM, 1986

StTaR-KistT Foops, INc.,

a California corporation,

Petitioner,

VS.

COUNTY OF LOS ANGELES, CITY oF LoS ANGELES

AND CITY OF LONG BEACH,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

CHARLES R. AJALAT, ESQ.

643 SOUTH OLIVE STREET, SUITE 200

Los ANGELES, CALIFORNIA 90014

(213) 622-7400

Attorney for Petitioner.

TERRY L. POLLEY, ESQ.

RICHARD J. AYooB, ESqQ., AND

AJALAT & POLLEY, A Partnership

Including Professional Corporations

Of Counsel.

Bowne of Los Angeles, Inc., Law Printers. (213) BOWNE CO

QUESTIONS PRESENTED

1. Is the well-established rule that subordinate politi-

eal entities, as “creatures” of the state, may not challenge

state action, inapplicable to challenges by subordinate

political entities under the Commerce Clause of the

United States Constitution?

2. Did a state statute, valid when enacted, which

confirmed the immunity of certain imported goods from

state property taxation under the original package doc-

trine of Low v. Austin, 80 U.S. (13 Wall.) 29 (1872),

become unconstitutional as a regulation of foreign com-

merece immediately following this Court’s decision in

Michelin overruling Low v. Austin particularly when it is

consistent with the policies of the Import-Export and

Commerce Clauses favoring the free flow of commerce

and there.is no showing of interference with the federal

government’s ability to speak with one voice when regu-

lating commercial relations with foreign governments

under Japan Lines, Ltd. v. County of Los Angeles, 441 U.S.

434 (1979), and Container Corp. v. Franchise Tax Board,

463 U.S. 159 (1983)?

3. Unlike the situation which existed prior to Michelin

and the situation in Japan Lines, must state taxing stat-

utes subsequent to Michelin treat foreign commerce and

interstate commerce with meticulous equality?

4. Where there is no showing of an impermissible

burden on interstate commerce, there is no penalty or

disincentive on the choice to transact business in another

state, local interests are not favored, and the exemption is

available regardless of the residency of the shipper or the

out-of-state place of manufacture of the goods, is a State

prohibited from “ecompet[ing] with other States for a

share of interstate commerce” under Boston Stock Ex-

li

change v. State Tax Comm’n, 429 U.S. 318 (1977) and

Westinghouse Electric Corp. v. Tully, 466 U.S. 388 (1984)?

5. Is it sufficient to invalidate a state statute exempt-

ing certain imported goods from property taxation simply

to point out that a comparable exemption was not ac-

eorded goods brought into the state from other states

without any showing as to the extent of actual discrimina-

tion against interstate commerce, if any?

6. If the property tax exemption violates the Com-

merce Clause, particularly considering the fact that all

other California counties (57 of 58) granted the property

tax exemption, and this Court, without opinion, split 4-4,

should the doctrine be applied retroactively prior to

January 26, 1981, the time this Court issued a final

decision in Sears, affirming the doctrine of Zee Toys v.

County of Los Angeles, 85 Cal.App.3d 763 (1978)?

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................

ters d oan che sathasnenase es ex

PRIOR UNITED STATES SUPREME COURT

ACTION: SPLIT FOUR TO, FOUR PRECISELY

IED oes kS cb ecb eds cewssteenee

a ran 6 P66 6 in sb enecebes seuss

CONSTITUTIONAL PROVISIONS AND STAT-

ED oi SED 5 an 6 060 0 60060 ccs ee

STATEMENT OF THE CASE..................

STATEMENT OF REASONS FOR GRANTING

THE WRIT OF CERTIORARI ...............

ge ERY PE SP

There is Not an Exception, for Commerce Clause

Attacks, to the Well-Established Rule that

Subordinate Political Entities Cannot Chal-

lenge a Statute of Their Creator.............

Il.

The Statute Involved Does Not Result in an Inva-

lid Regulation of Foreign Commerce: It Was

Valid when Enacted, Michelin Did Not Invali-

date It, It Is Consistent with the Policies of the

Import-Export and Commerce Clauses, Favor-

ing the Free Flow of Commerce, and It Does

Not Interfere with the Ability of the Federal

Government to Speak with One Voice ........

Il.

State Taxing Statutes Should Not Be Required to

Treat Foreign Commerce and Interstate Com-

merece With Meticulous Equality.............

bho bk

wo Ww

14

14

18

iv

TABLE OF CONTENTS

Page

IV.

The Statute Involved Does Not Burden Interstate

Commerce Where There is no Showing of an

Impermissible Burden, no Penalty or Disincen-

tive on the Choice to Transact Business in

another State, Local Interests are not Favored

and the Exemption is Available Regardless of

the Resideney of the Shipper or the Out-of-

State Place of Manufacture of the Goods..... 22

V.

The Extent if Any of Actual Discrimination

Against Interstate Commerce Has Not Been

FO ye ee Eee POT EST TET eee 24

VI.

If States Could Not Facilitate the Free Flow of

Foreign Commerce, as the Statute Involved

Does, there Should Be a Grace Period of

Adjustment, and/or Such Doctrine Should Not

Be Applied Prior to the Affirmance by an

Equally Divided Court in Sears, January 26,

ieee Ana wee es Wis ban eae peas ea tous 25

INDEX TO APPENDICES

Appendix A. California Supreme Court Opinion.

Appendix RP. Brief for the Unitec States as Amicus

Curiae.

Appendix C. Court of Appeal Opinion.

Appendix D. List of Star-Kist Foods, Inc. Subsidiaries.

Vv

TABLE OF AUTHORITIES CITED

Cases

Page

Aldens, Inc. v. Ryan, 571 F.2d 1159 (10th Cir.

SED. bn bn eek cndrctee i trie 24

Allied Stores v. Bowers, 358 U.S. 522 (1959) ....8,11, 21

Bacon v. Illinois, 227 U.S. 504 (1913) ........... 24

Board of Education v. Allen (1968) 392 U.S. 236 17

Beston Stock Exchange v. State Tax Comm’n, 429

Ca See CEOs) accccees i, ii, 7, 9, 13, 16, 18 23, 25, 26

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) .... 25

City of South Lake Tahoe v. California Tahoe

Regional Planning Agency, 625 F.2d 231, cert.

den., 449 U.S. 1039 (9th Cir. 1980) ........... 11,8

Complete Auto Transit v. Brady, 430 U.S. 274

(IOTE? cdc cdusewscidsaee ake eee 7, 8, 24

Container Corp. v. Franchise Tax Board, 463 U.S.

0D CORD ob eictnasceudecdacactaaaas i, 7, 8, 11, 20, 24

Japan Lines, Ltd. v. County of Los Angeles, 441 U.S.

rere PPro re ery pep st ree i, 8, 22

Low v. Austin, 80 U.S. (13 Wall.) 29 (1872) ..... i, 4,5

Michelin v. Wages, 423 U.S. 276 (1976) ......... passim

Richfield Oil Corp. v. State Board of Equalization,

Bik me Bt | Peer eer ver errr ere 24

Rogers v. Brockette, 588 F.2d 1057, cert. den., 444

US, GET Ces Ca See bcd es eeeckceevnueen 7, 15, 16

San Diego Unified Port Dist. v. Gianturco (S.D. Cal.

1978) 457 F.Supp. 283 aff’d., 651 F.2d 1306, cert.

Gen., Soe Ui Pe ae kee ckeeesusadéerdnens 7, 15, 16

vi

TABLE OF AUTHORITIES CITED

CASES

Page

Sears Roebuck & Co. v. County of Los Angeles, 85

Cal.App.3d 763 (1978) aff'd 449 U.S. 1119

CSUR) 4500005600ce0eleaeaeea 2, 6, 13, 18, 25, 26

Star-Kist Foods, Inc. v. County of Los Angeles,

CS Gin, GB Cane B CIGGSD vc cucecscsdvences 16, 20, 21

Volkswagen Pacific Inc. v. City of Los Angeles, 7

CE ee COED ho bcc cceneseerudiveceeen 4

Walter Fleisher Co., Inc. v. County of Los Angeles,

Ge Ces Ge REED 6a boa dadacatbenweaeerinle 2,6

Washington Rev. Dept. v. Stevedoring Assn., 435

Cie CO CRPTOD kaka cvdcndtssatuatacheniiee 24

Westinghouse Electric Corporation v. Tully, 466 U.S.

Saw CHOSE és ib vats vasewbeen ii, 3, 8, 9, 12, 16, 22, 23

Williams v. Mayor of Baltimore, 289 U.S. 36 (1933)

even eens s seen Ueubue ee eeneeeee 3, 7, 8, 14, 15, 17

Zee Toys v. County of Los Angeles, 85 Cal.App.3d

Van RReUO) h0006ccaccaenee ii, 6, 13, 17, 25, 26

Constitution

California Constitution, Article XIII............ 16

United States Constitution, Article 1, See. &,

CHD Sc v.c vceseewaawen cals eueeaaaeaeeeies 3

United States Constitution, Fourteenth Amend-

MOE ooccccncacctvcusabanwednensesdseensuuias 7,15

Statutes

California Revenue and Taxation Code, See. 225 passim

SS UA We. Seen os cunsaccescunvsaeanues 2

BO UDA. BOG, BSCE s6s4 car dncebacceneawass 17

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

STarR-Kist Foops, INc.,

a California corporation,

Petitioner.

Vs.

COUNTY OF LOS ANGELES, CITY OF

Los ANGELES, City OF LONG BEACH

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

Petitioner Star-Kist Foods, Inc., a corporation’, re-

spectfully prays that a writ of certiorari issue to the

Supreme Court of the State of California, to review that

Court's decision holding (1) that Defendants County of

Los Angeles, City of Los Angeles and City of Long Beach

have standing to attack the constitutionality of a statute

of the State of California, and (2) that California Reve-

‘The parties to the proceeding in the California Supreme Court are

Petitioner, (Plaintiff and Appellant), Star-Kist Foods, Inc., a Cali-

fornia corporation, and Defendants and Respondents, County of Los

Angeles, City of Los Angeles, and City of Long Beach. Star-Kist

Foods, Inc. is a wholly-owned subsidiary of H. J. Heinz. The subsidi-

aries of Star-Kist Foods, Inc. are set forth in Appendix D.

2

nue and Taxation Code Section 225, providing for an

exemption from property taxation of imported goods

brought into the state for shipment outside the state, is

invalid on the grounds that such an exemption constitutes

a regulation of foreign commerce and a diserimination

against interstate commerce in contravention of the

United States Constitution.

OPINION BELOW

The opinion of the Supreme Court of California is

reported at 42 Cal.3d 1 (1986) and is set forth in

Appendix A, hereto.

PRIOR UNITED STATES SUPREME COURT

ACTION

The United States Supreme Court previously granted

certiorari on these two important issues, and affirmed

without opinion by an equally divided court, with

J. Stewart not participating. Sears, Roebuck and Co. v.

County of Los Angeles, 449 U.S. 1119 (1981), and Walter

Fleisher v. County of Los Angeles, 449 U.S. 608 (1981).

Contrary to the position of the Supreme Court of Califor-

nia in the instant ease, in Sears, the Solicitor Genemal

filed an amicus curiae brief recommending that the Cali-

fornia statute be held constitutional, and such brief is set

forth in Appendix B, hereto.

JURISDICTION

The decision of the Supreme Court of California to be

reviewed was entered on June 30, 1986, with a dissenting

opinion by Justice Lueas. A petition for rehearing was

denied on August 28, 1986 with Justice Lucas of the

opinion the petition should be granted.

The jurisdiction of this Court is invoked under 28

United States Code, Seetion 1257(3).

SO

3

This Court’s review by certiorari is sought on the

grounds that the California Supreme Court has deter-

mined novel and substantial questions arising under the

United States Constitution involving the application of

this Court’s decisions in Williams v. Mayor of Baltimore,

289 U.S. 36, 40 (1933), (“standing” issue), Westinghouse

Electric Corporation v. Tully, 466 U.S. 388, 406 fn. 12,

(1984), and Michelin v. Wages, 423 U.S. 276 (1976),

(“Commerce Clause” issue), to one of California’s tax

laws, and has decided them in a manner the petitioner

believes to be erroneous.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. Artiele I, Seetion 8, Clause 3 of the United States

Constitution: “Congress shall have the power to regulate

ecommerce with foreign nations and among the several

states.”

2. California Revenue and Taxation Code Section 225

reads in pertinent part: “Personal property manufactured

or produced, (1) outside this state and brought into this

state for transshipment out of the United States, or (2)

outside of the United States and brought into this state

for transshipment out of this state, for sale in the ordi-

nary course of trade or business shall be exempt from

taxation.”

STATEMENT OF THE CASE

Petitioner brought this suit for refund of ad valorem

personal property taxes paid under protest to the County

of Los Angeles, and the cities of Los Angeles, and Long

Beach.

Petitioner is a producer and seller of canned tuna. All

of the tuna involved herein was manufactured or pro-

4

duced outside the United States and had been imported

and held in warehouses in California on the tax lien date,

March 1, 1976, awaiting shipment out of state in the

ordinary course of petitioner’s business. All such goods

were in their original packages and would have been

Constitutionally immune from state taxation under the

original package doctrine of Low v. Austin, if that ease

had not been overruled by Michelin, decided in January,

1976.

In 1972, in Volkswagen Pacific Inc. v. City of Los

Angeles, 7 Cal.3d 48 (1972), the California Supreme

Court held that goods which were imported by a whole-

saler in sea vans and removed from the sea vans for sale.

and delivery to dealers were not immune from a city

license tax. Many county assessors erroneously inter-

preted the Volkswagen case as holding that all goods

imported in sea vans lost their immunity upon the open-

ing of the vans. The resulting assessments caused wide-

spread consternation among California importers many of

whom commenced diverting their imports from California

ports to ports in other states such as Oregon and Wash-

ington which have previously enacted “free port” laws.

Some 37 states at the time had such laws.

In an effort to prevent the diversion of imports from

California to other states having “free port’ laws, the

California legislative enacted its own free port law, Cali-

fornia Revenue and Taxation Code Section 225. Insofar

as relevant, it provides that goods produced outside the

United States and brought into California for shipment

and sale outside the state are exempt from property

taxation. The section was enacted in 1975 and became

effective January 1, 1976. Both the date of enactment and

the effective date preceded this Court’s decison in

Michelin.

)

The tax status of goods other than the imports de-

seribed in the preceding paragraph was not affected by

Section 225. Thus goods imported for sale or use in

California were, at the time the section was enacted,

either immune or taxable depending on whether or not

they met the requirements of the original package doc-

trine. Goods produced in the state and still in the state on

its tax date remained fully taxable regardless of whether

brought in for sale or use in, or for shipment and sale

outside, the state.

The Michelin case which overruled Low v. Austin,

thereby terminating the original package doctrine, was

decided in January, 1976. The state thus obtained juris-

diction for the first time in 105 years to tax imported

goods as fully as it coula tax goods produced locally or

brought in from other states. Goods imported for sale and

delivery in California thus became taxable. However,

Section 225 continued to provide an exemption for goods

imported into the state and held here temporarily for

subsequent shipment and sale outside the state. A similar

exemption was not accorded to goods brought into the

state from other states and held here temporarily for

subsequent shipment and sale outside the state.

Respondents, through the Assessor of Los Angeles

County, denied the claimed exemption. The other 57 of

California’s 58 counties followed the statute, granted its

taxpayers the exemption and such taxpayers have never

been assessed taxes as a result of the exemption having

been declared unconstitutional.

Los Angeles County asserted that Section 225 violates

the United States Constitution by regulating interstate

and foreign commerce in interfering with foreign affairs,

beeause it extended no exemption to interstate goods.

Petitioner thereupon paid the tax under protest and

6

instituted this action for refund in the Superior Court of

Los Angeles County.

The same issues were involved in three other cases in

the Los Angeles Superior Court, Zee Toys v. County of Los

Angeles, Sears, Roebuck v. County of Los Angeles, and

Walter Fleisher v. County of Los Angeles. The California

Superior Court upheld the validity of the tax exemption

in these cases but the California Court of Appeal re-

versed, holding that the county and cities had standing to

attack the state statute, but that Section 225 violated the

Commerce Clause because it regulated interstate and

foreign commerce. Zee Toys v. County of Los Angeles,

Sears Roebuck & Co. v. County of Los Angeles, 85

Cal.App.3d 763 (1978). By a four to three vote, (three

Justices dissenting), the Supreme Court of California

denied a petition for hearing.

A petition for certiorari in Sears was filed in this Court.

Upon this Court’s invitation, the Solicitor General filed an

amicus curiae brief and recommended that certiorari be

granted and that the statute be held constitutional under

the Commerce Clause. This Court granted certiorari in

the Sears and Walter Fleisher cases, but split four to four:

“The judgment is affirmed by an equally divided court.

Justice Stewart took no part in the consideration or

decision of this case.” 449 U.S. 119, 67 L.Ed.2d 106

(1981).

In the instant case, based upon Zee Toys, the Los

Angeles Superior Court held that the County and cities

had standing to attack the state statute, and that Section

225 was unconstitutional. The California Court of Appeal

reversed. (See Appendix C) While it held that the County

and cities had standing to attack the statute, it went on to

hold the statute was constitutional. The Supreme Court of

California granted a petition for hearing, holding con-

trary to the Court of Appeal and upholding the trial

7

eourt’s decision that the statute violated the Commerce

Clause.

The Supreme Court of California held that the well-

established ruie that subordinate political entities, as

“creatures” of the state, may not challenge state action,

Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933)

applied under federal law only to challenges under the

Fourteenth Amendment or the contract clause of the

Federal Constitution and not to Commerce Clause chal-

lenges, notwithstanding the opinion of the Ninth Circuit

Court of Appeals to the contrary. City of South Lake Tahoe

v. California Tahoe Regional Planning Agency, 625 F.2d

231, cert. den., 449 U.S. 1039 (White, Marshall, JJ., dis.)

(9th Cir. 1980). The Court believed that a Fifth Cireuit

Court of Appeal decision and a federal district court

decision applied. Rogers v. Brockette, 588 F.2d 1057, cert.

den. 444 U.S. 827 (5th Cir. 1979); San Diego Unified Port

Dist. v. Gianturco (S.D. Cal. 1978) 457 F.Supp. 283, aff'd

651 F.2d 1306, cert. den., 455 U.S. 1000.

Having held that there was standing to attack the

statute, the Supreme Court of California held the statute

violated the Commerce Clause, implying that it may

offend Congress’ power to regulate foreign commerce

under Michelin and Container Corp., and that it diserimi-

nates unconstitutionally against interstate commerce

under Boston Stock Exchange and Complete Auto Transit v.

Brady, 430 U.S. 274 (1977).

Justice Lucas dissented on the basis that the majority

applied improper analysis and that the decision improp-

erly precludes the Legislature from future use of this

valid device to attract foreign commerce to California

ports.

Justice Lucas pointed out that although the majority

conceded nondiseriminatory taxes would have no impact

8

on the foreign commerce power, that an exemption from

tax might actually offend that power because it may

operate to nuilify the curative effect of federally imposed

tariffs. The dissent submitted that such speculation is not

sufficient to strike down an otherwise valid exercise of

state power. Citing Container Corp., Japan Line, and the

amicus curiae brief of the Solicitor General in Sears,

Justice Lucas found that the challenged exemption

neither implicates foreign policy nor violates a clear

federal directive, and does not impair federal uniformity,

preventing the federal government from “speaking with

one voice” in international trade. Rather than violate any

policy of the foreign Commerce Clause, the exemption, if

anything, facilitated the flow of foreign commerce.

Justice Lucas also pointed out the majority’s error in

using the Complete Auto analysis of whether a tax inter-

feres with interstate commerce, to determine whether the

exemption in question unduly burdens interstate com-

merce. Justice Lucas believes Westinghouse Electric is

controlling and upholds the constitutionality of the ex-

emption under the Commerce Clause. He pointed out that

there was no burden imposed on interstate commerce by

placing a penalty or disincentive on the choice to transact

business in another state, that local interests were not

favored, and that the exemption is available regardless of

the residency of the shipper, or the out-of-state place of

manufacture of the goods.

The dissent believed the respondent’s claim is really an

equal protection attack and an inappropriate one under

Allied Stores v. Bowers, 358 U.S. 522 (1959).

Petitioner believes that the Supreme Court of Califor-

nia misunderstands the rule of Williams v. Baltimore and

the Ninth Cireuit opinion in City of South Lake Tahoe, and

that local governments cannot attack a statute of their

creator, the State of California.

9

Petitioner further believes that the Supreme Court of

California misunderstands the Commerce Clause deci-

sions of this Court, particularly the proper application of

Westinghouse Electric and Boston Stock Exchange both of

which emphasize that the Commerce Clause does “not

prevent the states from structuring their tax systems to

encourage the growth and development of intrastate com-

merce and industry” and “we do not ‘hold that a state

may not compete with other states for a share of inter-

state commerce: such competition is at the heart of free

trade policy.’” Boston Stock Exchange v. State Taz

Comm’n 429 U.S. 318, 336-7 (1977); Westinghouse Electric

Corp. v. Tully, 466 U.S. 388, 406, fn. 12 (1984). If Section

225 is not constitutional, it is questionable whether any

state incentive can ever be constitutional.

The California Supreme Court should be directed to

recall its remittitur and hold that there is no standing of

the local governments to attack the statute, and if there

is, the statute is constitutional.

STATEMENT OF REASONS FOR GRANTING THE

WRIT OF CERTIORARI

The Supreme Court of California has distorted and

ignored this Court’s well-established rule, which is fol-

lowed by the Ninth Circuit, that local governments can-

not attack a statute of their creator. The question of

whether this rule has been limited by the Fifth Circuit,

and the federal district court for the southern district of

California and the resolution of the conflict between the

Ninth Cireuit and Fifth Cireuit, two federal courts of

appeal, is a question that should be appropriately decided

by this Court, and not the Supreme Court of California.

With respect to the Commerce Clause question, the

Supreme Court of California attempts to defend the

interest of the United States, and to declare its own

10

statute unconstitutional, notwithstanding the position of

the United States that the statute is constitutional. See

Brief of the United States, attached as Exhibit B.

As pointed out by the Solicitor General, there is no

constitutional prohibition against favoring imports over

domestic goods. The Import-Export Clause of the Consti-

tution itself makes such a differentiation. The decisions of

this Court involving imports, exports, and foreign com-

merce uniformly emphasize that one of the principal

purposes of the Constitution was to assure that the states

did not impede or obstruct importation, exportation or

foreign commerce. Although Michelin held a state was not

constitutionally required to exempt imports, nothing in

the decision suggested that the exemption that had previ-

ously been constitutionally required under decisions over-

ruled by Michelin was thereafter constitutionally

prohibited. Nothing in the Commerce Clause prevents a

state from favoring imports and exports, and their trans-

shipment through a state, beyond the extent required by

the Import-Export Clause.

Although it is clear that a state may, for years subse-

quent to Michelin, tax imported goods which were previ-

ously immune, must it do so? Or, may a state in order to

prevent the diversion of its import business to other

States, such as Oregon and Washington which have en-

acted free port laws, continue to exempt gvods which

previously were immune from state taxation for over 100

years without at the same time revising its laws to exempt

goods moving in interstate commerce which were histori-

cally taxable even while the immunity of imported goods

existed?

If there is to be adopted a rule that foreign and

domestic commerce must always meticulously be treated

equally, numerous important state tax policies will be

swept off the books. The rule urged by respondents and

11

upheld by the Court below that after Michelin state taxing

statutes must treat foreign commerce and interstate com-

merce with meticulous equality is contrary to the philoso-

phy of Allied Stores v. Bowers, 358 U.S. 522 (1959), which

held that a state may tax the goods of nonresidents more

favorably than the goods of residents. The adoption of a

rule requiring hard and fast equality would give rise to

serious questions as to the validity of a great many state

taxing policies.

One of the most important of these involves the dra-

matie international tension that has existed regarding

California’s so called “unitary tax.” Respecting the im-

portance of the State’s power to determine what and how

to tax (and what and how not to tax), this Court in

Container Corp. v. Franchise Tax Board, 463 U.S. 159

(1983) upheld worldwide combination. Because of the

international: furor over the “unitary tax,” after

Container, the President of the United States formed a

Working Group to deal with the problem.

Its keystone recommendation was that there be state

legislation limiting combination of income to the “water's

edge” and not including “foreign source” income as part

of the taxing base. Such legislation has finally after many

difficult years been enacted in California, under the

threat of federal government legislation. If a rule were

adopted in this ease that foreign and domestic commerce

had to be treated the same, such Sing te me would be

voided since domestic source income is ‘combined, but

foreign source income is excluded. Under the decision

below, such a distinction would violate the Commerce

Clause.

As noted above in the discussion of the dissent of

Justice Lucas in the Supreme Court of California, not

only are no policies of the foreign commerce clause

12

contravened, but the tax exemption statute at issue actu-

ally furthers the free flow of commerce.

Further, there is no violation of the interstate com-

merce clause. If a statute such as the one in question

(1) where there is no burden on interstate com-

merce by placing a penalty or disincentive on the

choice to transact business in another state,

(2) where loeal interests are not favored, and

(3) where the exemption is available regardless of

the residency of the shipper or the out-of-state place

of manufacture of the goods,

is not constitutional, it would make meaningless this

court’s emphasis on allowing states to structure their tax

systems to encourage the growth and development of

intrastate commerce and industry and to compete for a

share of interstate commerce, with such competition be-

ing at the heart of a free trade policy (Westinghouse

Electric, 466 U.S. 388 (1984)). If Seetion 225 is not

constitutional, presumably no state incentive can ever be

constitutional.

Respondents have made no effort whatsoever to estab-

lish that Section 225 results in actual discrimination

against interstate commerce. It may well be that goods

brought into the state from other states for shipment and

sale outside the state are seldom, if ever, assessed for

property taxation in California. Certainly there is nothing

in the record to support a contrary conclusion. For this

reason alone the decision of the Court below should be

reversed. It strikes down a state taxing statute solely on a

per se basis contrary to recent pronouncements of this

Court concerning the extent to which interference with

commerce is required before the Commerce Clause invali-

dates state tax provisions.

13

As a matter of proper judicial interpretation, the con-

stitutionality of the statute should have been upheld

unless it was ciear the statute is unconstitutional. The

judicial history of the attack on the statute shows no one

eould argue it is clearly unconstitutional: the California

Supreme Court denied a petition for hearing in Sears four

to three, this Court split four to four in Sears and the

Court of Appeal in this ease upheld the statute as consti-

tutional. Legislative enactments are presumed constitu-

tional and local governments have long been prohibited

from attacking statutes of their creator.

Even if it should be held that state tax laws must

hereafter deal equally with foreign and interstate com-

merece, 2 period of grace should be allowed the states in

which to revise their laws. Such grace period or nonretro-

activity is particularly appropriate in the unique cireum-

stances of the instant case:

(1) a county with dubious authority to do so,

attacked a statute of its creator,

(2) in every other county of the state, the exemp-

tion was granted, and

(3) there were superior courts holding the statute

constitutional, and others holding it uneonstitu-

tional, the Zee Toys Court of Appeal held the statute

unconstitutional, and the Star-Kist Court of Appeal

held the statute constitutional, the California Su-

preme Court denied a petition for hearing in Zee Toys

four to three, and this Court split over the issues

involved four to four. It is submitted that were there

such a doctrine holding under Michelin and Boston

Stock Exchange that the free flow of foreign com-

merce could not be facilitated as Section 225 does,

that such doctrine should not be applied to matters

arising prior to the decision in Sears, January 26,

1981.

14

ARGUMENT

1.

There is Not an Exception, for Commerce Clause At-

tacks, to the Well-Established Rule that Subordinate

Political Entities Cannot Challenge a Statute of Their

Creator

In Williams v. Baltimore, 289 U.S. 36 (1932), the

Maryland Legislature had by statute exempted certain

railroad property from all state taxation, including prop-

erty taxation. The Mayor and City Council of Baltimore

and similar officials of Annapolis attacked the constitu-

tionality of the statute on federal (Fourteenth Amend-

ment) constitutional and state constitutional grounds.

The Fourth Cireuit Court of Appeals held the statute

unconstitutional on those two sets of grounds, and the

United States Supreme Court granted writs of certiorari.

The Court held the Baltimore and Annapolis officials had

no standing to attack the statute on federal constitutional

grounds, although because it had not been objected to by

the parties, the Court heard the attack based on state

constitutional grounds.

The Court held that local governmental entities do not

have standing to attack statutes of a superior body on

federal constitutional grounds: “A municipal corporation,

created by a state for the better ordering of government

has no privileges or immunities under the federal Consti-

tution which it may invoke in opposition to the will of its

creator...” Williams v. Baltimore, supra, 289 U.S. 36, at

p. 40. The Court even questioned whether state constitu-

tional grounds could be raised by the local governmental

entities in attacking the statute, while simultaneously

emphasizing their lack of standing to argue federal con-

stitutional issues: “We have assumed, without deciding,

that the respondents, though without standing to invoke the

a ———

15

protection of the Federal Constitution, will be heard to

evmplain of a violation of the Constitution of the State . .

.” Williams v. Baltimore, supra, at pp. 47-48. (Emphasis

added)

The lack of “standing to invoke the protection of the

Federal Constitution” was certainly not limited in Wil-

liams to the Fourteenth Amendment and the contract

clause.

Rather, as the Supreme Court of California recognizes

“In City of South Lake Tahoe v. California Tahoe Regional

Planning Agency (9th Cir. 1980) 625 F.2d 231, cert. den.

449 U.S. 1039 (White, Marshall, JJ., dis.) the Ninth

Cireuit interpreted this ‘no standing’ rule as absolutely

barring political subdivisions from challenging state stat-

utes on any federal constitutional ground.” (42 Cal.3d 1,

7.)

The Supreme Court of California, ignoring the clear cut

rule, cited a Fifth Cireuit opinion and various federal

district court opinions which have held that “the rule does

not extend to supremacy clause challenges to state laws.”

The Court found the Fifth Cireuit opinion — Rogers v.

Brockette 588 F.2d 1057, cert. den., 444 U.S. 827 (5th Cir.

1979) — to imply a rule contrary to that of the Ninth

Cireuit, although the Fifth Cireuit’s opinion seems

strictly limited to the supremacy clause.

The Supreme Court of California erroneously relies on

a federal district court decision which allowed standing

for a local government to “invoke the supremacy clause

despite its lack of capacity to raise other constitutional

claims” because the supremacy clause “establishes a

structure of government which defines the relative powers

of states and the federal government.” (San Diego Unified

Port Dist. v. Gianturco (S.D. Cal. 1978) 457

16

F.Supp. 283, aff'd 651 F.2d 1036, cert. den., 455 U.S.

1000, at 457 F.Supp. 290.)

Attempting to understand the rule from Rogers-Gian-

turco, the Supreme Court of California found that “the

commerce clause resembles the supremacy clause in that

it albeit indirectly ‘defines the relative powers of states

and the federal government. (Gianturco, supra, 457 F.

Supp. at p. 290) The Court, thus, understood there to be

an exception for Commerce Clause challenges by local

governments under the doctrine of the lack of local

government’s power to attack state statutes.

The Court is incorrect in its comment that “In the

present case, for example, there is a real possibility that

the constitutionality of the Legislature’s scheme of differ-

ential taxation of business inventories would have gone

unchecked absent challenge by those entities charged

with administration of the program.” Star-Kist Foods, Inc.

v. County of Los Angeles, et al 42 Cal.3d 1, at p. 9. If, in

fact, there was a discrimination against interstate com-

merece, those involved in such commerce could well raise

the claim. See, for example, the discriminated taxpayers

in Westinghouse Electric or Boston Stock Exchange.

The people of California entrusted their legislative

representatives to determine what personal property

should be exempt. “The constitution further empowers

the Legislature ... to ‘classify such personal property for

differential taxation or for exemption.’ (Cal. Const. Art.

XIII.) By having its “creatures”, all of the forms of local

government, be able to attack the statutes the State

Legislature creates is only to spawn litigation upon litiga-

tion, with an ever-expanding role of government. It is

precisely this legislative-type role of making up new legal

rules that has made the Supreme Court of California the

subject of controversy in the California November, 1986

election.

| a "

17

If the Court determines that the County and cities have

no standing, petitioner requests that rather than dis-

missing, the ease be remanded to the California Supreme

Court for further proceedings consistent with its opinion

inasmuch as the California Court misunderstood the rule

of standing.

Were this Court for any reason to consider dismissing

for lack of standing rather than remanding, petitioner

would, in the alternative, request this court to find in the

context of this case that the County and local govern-

ments do have standing on the basis that they were not

attacking the statute of their creator, but continued to

refuse the refunds based on the exemption granted by

Section 225 simply because they felt bound by the judicial

determination in Zee Toys, 85 Cal.App.3d 763 (1978)

affirmed by a split court 449 U.S. 119 (1981) that Section

225 was unconstitutional.

It would be unfair to petitioner who for over 10 years

has sought a refund based on a state legislatively-granted

exemption, to be refused that exemption on federal con-

stitutional grounds, without the opportunity of having the

highest arbiter of federal constitutional law, the United

States Supreme Court, review the very important ques-

tion of federal law. To avoid the “eateh 22” of the

dismissal route, petitioner early in its case advised the

members of the State Board of Equalization, the Attorney

General, the individual members of the Board of Supervi-

sors, the Assessor, the Tax Collector, and the Auditor-

Controller that they may wish to intervene in the instant

ease, so that if there be no standing under Williams v.

Baltimore, there might be standing under Board of Educa-

tion v. Allen (1968) 392 U.S. 236. The state and local

officials contacted have not chosen to intervene. 28 U.S.C.

§ 2403(b) may be applicable to this case.

18

Constitutional law scholars and the bar have waited for

many, many years to have the standing question resolved.

It appeared it would be resolved in Sears but the Court

split four to four. The issue of standing involved in the

present case should now be addressed, but without

prejudice to petitioner being heard by the Court on the

important Commerce Clause substantive question dis-

cussed below.

II.

The Statute Involved Does Not Result in an Invalid

Regulation of Foreign Commerce: It Was Valid When

Enacted, Michelin Did Not Invalidate it, it is Consis-

tent with the Policies of the Import-Export and Com-

merce Clauses, Favoring the Free Flow of

Commerce, and it does not Interfere with the Ability

of the Federal Government to Speak with One Voice

The Solicitor General (see Exhibit B) distinguished

Boston Stock Exchange from the instant situation:

“Here, in contrast, the statutory property tax exemp-

tion did not favor local business at the expense of

out-of-state business. It favored imports and exports.

There is, however, no constitutional prohibition against

favoring wmports over domestic goods. The Import-

Export Clause of the Constitution itself makes such a

differentiation. Section 225... facilitates importation

and exportation... Nothing in the Commerce Clause

prevents a state from favoring imports and exports

beyond the extent required by the Import-Export

Clause.” (Page 6 of Brief of the United States,

Exhibit B, emphasis added.)

The position of the United States in the matter is that

state statutes, such as Section 225, which favors imports

over domestic goods, are not constitutionally prohibited

19

but, rather, constitutionally compatible with the Import-

Export and Commerce Clauses of the Constitution.

The federal government’s view though not dispositive,

is of great help for three important reasons:

(1) the logie of its position and its understanding

of the cases are sound, and rooted in policy;

(2) its views are independent and uninfluenced by

a stake in the litigation (its views were requested by

this Court); and

(3) its views are those of the party whom the

California Courts sought to protect, even though the

federal government not only feels Section 225 is

constitutional, but that it is in furtherance of impor-

tant federal constitutional principles behind the Im-

port-Export and Commerce Clauses.

It is important to note that the statute in question was

enacted in 1975 at a time when imported goods of the

kind involved herein were immune from state taxation At

the time, and for over 100 years prior thereto, it was

permissible for a state to tax goods coming into the state

in interstate commerce notwithstanding that goods im-

ported from foreign countries were immune from such

taxation. Thus the statute was entirely valid at the time of

its enactment.

If after Michelin the legislature had enacted a statute

imposing a substantially higher tax on imported goods

than it imposed upon other goods, one could accept the

conclusion that the statute constituted an invalid regula-

tion of foreign commerce. It is difficult to understand,

however, how the simple continuation of a pattern of

taxation which validly existed for over 100 years can

suddenly overnight be converted into an unconstitutional

regulation of foreign commerce.

a

20

It is even more difficult to understand how the continu-

ation of such a pattern in any way frustrates Congres-

sional policy in establishing tariffs, as held by the iower

court. To the best of petitioner’s knowledge, Congress has

never taken state property taxes into account in the

imposition of tariffs on imported goods. It would be

extremely difficult, if not impossible, for it to do so. There

are 50 different states with widely different tax systems

and tax rates. Even if there were any merit to the

argument, the effect of the statute in question is, in the

overall context, de minimis.

It is fanciful for the lower court to hold that the statute

involved herein may frustrate Congress in the levying of

tariffs. Such a speculative foundation should not be per-

mitted to stand as the basis for invalidating a state tax

statute under the United States Constitution. Some 37

states have free port laws under which goods brought into

the state and held there temporarily for subsequent ship-

ment outside the state are exempt from taxation. Before a

statute can be invalidated on such grounds, there should

be required a showing that there was an actual and

substantial effect upon Congress’ ability to regulate for-

eign commerce.

The exemption of Section 225 is not “pre-empted by

federa! law or fatally inconsistent with federal policy.”

(Container Corp. v. Franchise Tax Board, 463 U.S. 159 at

p. 197, emphasis added.) “Primarily, the majority has

failed to demonstrate how the tax exemption at issue

affects any foreign policy.”’ (See Container Corp., supra)

(Dissent of Justice Lucas, Star-Kist Foods, Inc. v. County

of Los Angeles, 42 Cal.3d 1, 18 (1986)) This is also no

violation of a clear federal directive nor impairment of

“speaking with one voice.” (Star-Kist Foods, Inc. v.

County of Los Angeles, 42 Cal.3d 1, Dissent pp. 18-19

(1986) )

’ ’

21

Justice Lueas significantly notes, that ‘rather than

impeding the flow of foreign commerce, this exemption, if

anything, facilitated this channel of trade.” (Star-Kist v.

County of Los Angeles, 42 Cal.3d 1, 19 (1986) ).

Il.

State Taxing Statutes Should Not Be Required to Treat

Foreign Commerce and Interstate Commerce With

Meticulous Equality

A hard and fast rule of equality, such as that proposed

by the lower court, would not only violate the policies of

Allied Stores v. Bowers, 358 U.S. 522 (1959) but would

lead to serious doubts as to the validity of various other

state taxing policies.

For example, California, as indicated above, as a result

of intensive study by the President of the United States’

Working Group, and as a result of federal pressure, has

alleviated international tensions by enacting a water's

edge bill — limiting the combination of worldwide income

in the franchise tax area. If the Court below is correct,

there would be an unconstitutional discrimination in the

new legislation.

In the above and numerous other instances which could

be mentioned, a hard and fast rule of equality would give

rise to serious questions of validity in many state taxing

statutes.

22

IV.

The Statute Involved Does Not Burden Interstate Com-

merce Where There is no Showing of an Impermissi-

ble Burden, There is no Penalty or Disincentive on

the Choice to Transact Business in Another State,

Local Interests are not Favored and the Exemption is

Available Regardless of the Residency of the Shipper

or the Out-of-state Place of Manufacture of the Goods

Respondent County has assumed any different treat-

ment of foreign commerce vis-a-vis interstate commerce is

prohibited by the Commerce Clause. This is not true.

Clearly, foreign commerce can be favored over interstate

ecommerce. Japan Lines v. County of Los Angeles, 441 U.S.

434 (1979); Westinghouse Electric v. Tully, 466 U.S. 388,

406 fn. 12 (1984). In fact, favoring the free flow of foreign

ecommerce is totally consonant with the underlying pur-

poses of the Commerce Clause.

The Court in Westinghouse recognized “‘a State’s inter-

est in exercising its taxing powers”... that the Commerce

Clause does “not prevent the states from structuring

their tax systems to encourage the growth and develop-

ment of intrastate commerce and industry.”...and that

“As in Boston Stock Exchange, we do not ‘hold that a state

may not compete with other states for a share of inter-

state commerce: such competition is at the heart of free

trade policy.’” Westinghouse Electric v. Tully, 466 U.S.

388, 406 fn. 12 (1984).

If a statute such as the one in question where

(1) there is no burden on interstate commerce by

placing a penalty or disincentive on the choice to

transact business in another state,

(2) loeal interests are not favored, and

23

(3) tke exemption is available regardless of the

residency of the shipper or the out-of-state place of

manufacture of the goods,

is not constitutional, it would make meaningless this

Court’s emphasis on allowing states to structure their tax

systems to encourage the growth and development of

intrastate commerce and industry and to compete for a

share of interstate commerce, with such competition be-

ing at the heart of a free trade policy (Westinghouse

Electric Corp. v. Tully, 466 U.S. 388 (1984)). If Section

225 is not constitutional, presumably no state incentive

ean ever be constitutional.

The Supreme Court in Westinghouse stated clearly that

a eredit or exemption favoring exports does not violate

the Commerce Clause:

We reiterate that it is not the provision of the [export]

credit that offends the Commerce Clause, but the fact

that it is allowed on an impermissible basis.” (Ibid. at

406, fn. 12 (emphasis added) ).

As Justice Lucas correctly indicates in the dissent: “A

recent United States Supreme Court case appears con-

trolling... Westinghouse Electric Corp. v. Tully (1984)

466 U.S. 388,...”

The Westinghouse and Boston Stock Exchange taxing

schemes were not problematic because of the positive

incentives they created, but were infirm due to the taxing

state imposing automatic penalties on activities occurring

in other states. The Court struck down the laws in question

on the basis that such burdens cannot be imposed on such

activities outside the state. Section 225 does not reach or

tax or penalize activities occurring in other states. There

is no use of the power of the state to force out of state

manufacturers or producers to transship through Califor-

nia. They can avoid California property taxation by ship-

24

ping directly through California to the ultimate

destination. Goods in transit are constitutionally immune

from property tax under the Commerce Clause if the

transportation is not interrupted at the behest of the

owner. Bacon v. Illinois, 227 U.S. 504 (1913). Or the non-

importer/exporter could avoid California property taxa-

tion by shipping through to an intermediate location in

another state which does not tax inventory. Section 225

merely preserves the advantage that foreign goods have

had from property taxation. Michelin v. Wages, 423 U.S.

276 (1976) did not require the taxation of foreign goods

but only permitted such taxation.

V.

The Extent if Any of Actual Discrimination Has Not

Been Established

Without any support in the record for finding that the

statute either regulates foreign commerce or affects com-

petition, the lower Court held that the statute per se

violates the Commerce Clause. The Court ignored estab-

lished ease law which holds that state tax laws affecting

commerce are invalid only if they seriously and unreason-

abiy burden commerce in relation to benefits. Richfield

Oil Corp. v. State Board of Equalization, 329 U.S. 69

(1946); Aldens, Inc. v. Ryan, 571 F.2d 1159, 1162 (10th

Cir. 1978), citing Complete Auto Transit, Inc. v. Brady,

430 U.S. 274 (1977). The clear trend of the Supreme

Court is to not limit the states’ taxing power, e.g., Miche-

lin Tire Corp. v. Wages, supra; Washington Rev. Dept. v.

Stevedoring Assn., 435 U.S. 734 (1978). Container Corp. v.

Franchise Tax Board, supra.

25

VI.

If States Could Not Facilitate the Free Flow of Com-

merce as the Statute Involved Does, there Should Be

a Grace Period of Adjustment, and/or Such Doctrine

Should Not Be Applied Prior to the Affirmance by an

Equally Divided Court in Sears, January 26, 1981

The litigation in the instant case has been going on for

ten years. Petitioner has the only remaining cases involv-

ing Section 225 and they involve only the years 1976,

(this case) and 1977, 1978 and 1979 (pending cases).

Thus appiying Sears from the 1981 date would also grant

the taxpayer the appropriate relief. The Sears or Zee Toys

rationale should not be applied retroactively prior to 1981

in the instant case, and in all events it should not be

applied retroactively prior to 1981 in the remaining cases

that involve this issue (Plaintiff’s suits for the 1977, 1978,

1979 years). Nor in the context of this case would it be

fair to require the taxpayer to wait another ten years to

determine the beginning point of this new doctrine.

It would be extremely unfair to have the legislative

exemption granted to all taxpayers in the other 57 coun-

ties (of California’s 58 counties), and to deny taxpayers

in Los Angeles County the exemption their competitors

received, because in a case of first impression and a case

involving a very close question, the statute was ultimately

held unconstitutional. This is an issue on which the

highest courts’ have previously split 4-3, and 4-4, and on

which two different Courts of Appeal have rendered

opposite decisions. In such a ease of first impression,

under Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) the

Sears, Zee Toys or Boston Stock Exchange-Michelin doc-

trine must not be applied retroactively, or a grace period

of adjustment should be allowed for the states (37 states

have freeport exemptions and other states distinguish in

their tax laws between foreign and domestic items).

26

In California Superior Court decisions related to the

instant ease, the Court found, among ten grounds, that

the retroactive application of the Sears-Zee Toys doctrine

[Boston Stock Exchange-Michelin| would be unfair and

would result in economic hardship, inequities, and injus-

tices; and/or importers relied upon and could not have

reasonabie foreseen that the exemption would be invali-

dated; and/or Publie policy will be served by preventing

the disruptive and unjust effect of applying the Zee Toys

decision retroactively; and/or the California Legislature

in passing Revenue and Taxation Code Section 225.3

provided relief from the retroactive application of the Zee

Toys decision to importers and exporters in many coun-

ties other than Los Angeles for the years 1976, 1977, and

1978; and that denying similar relief to taxpayers for

taxes which became due in these years would be

inequitable.

It is clear under the judicia! doctrine of when new case

law should not be applied retroactively, that a new Zee

Toys-Sears |Boston Stock Exchange-Michelin| doctrine

should not be applied retroactively under the facts and

circumstances of this case. Rather the new doctrine

should only be appiied prospectively from the affirmance

of Sears by this Court, 7.e., from 1981 forward.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

CHARLES R. AJALAT

Attorney for Petitioner

A-l

APPENDIX A

[42 Cal.3d 1]

[L.A. No. 31918. June 30, 1986.]

STAR-KIST FOODS, INC., Plaintiff and Appeilant, v.

COUNTY OF LOS ANGELES et al., Defendants and

Respondents.

OPINION

REYNOSO, J.— We consider two questions: whether

counties and municipalities may challenge the constitu-

tionality of a statute exempting from ad valorem taxation

business inventories of foreign origin or destination

which are transshipped through the state; and if so,

whether such exemption violates the commerce clause. We

conclude that counties and municipalities may raise such

a challenge, and that the statute in question offends the

commerce clause.

The parties stipulated to the relevant facts. For tax

year 1976-1977, defendants, Los Angeles County and the

Cities of Los Angeles and Long Beach, assessed and

levied ad valorem taxes on plaintiff Star-Kist Foods,

Ine.’s' inventory of canned tuna present in its California

warehouses on March 1, 1976, the lien date.” Star-Kist

paid the tax, but sought a refund.

'Star-Kist is a California corporation.

*In 1978, the Legislature enacted Revenue and Taxation Code

section 538 which requires an assessor who questions the constitu-

tionality of a particular tax provision to bring an action for declara-

tory relief against the State Board of Equalization in lieu of making

the disputed assessment. (Stats. 1978, ch. 1188, § 1, eff. Sept. 26,

A-2

[42 Cal.3d 5]

of the $44,197 assessed on that portion of Star-Kist’s

inventory that had been manufactured or produced

outside the United States and brought into California for

shipment to other states for sale in the ordinary course.’

Star-Kist based its refund claim on the exemption

contained in newly enacted Revenue and Taxation Code*

section 225, which provided an exemption from taxation

for “[p]Jersonal property manufactured or produced, (1)

outside this state and brought into this state for trans-

shipment out of the United States, or (2) outside of the

United States and brought into this state for transship-

ment out of this state, for sale in the ordinary course of

trade or business...”

After exhausting its administrative remedies, Star-Kist

brought suit in Los Angeles County Superior Court for

refund of the contested taxes. Defendants asserted that

the statutory exemption was invalid in that it violated the

commerce clause of the federal Constitution (U.S. Const.,

art. I, $8, el. 3) by interfering with Congress’ plenary

power over commerce, in that it discriminated against

interstate commerce.

1978.) As this controversy arose before section 538 was enacted,

section 538 does not apply to these proceedings.

“The inventory in question was valued at $655,140. The assessed

value of Star-Kist’s total inventory for 1976-1977 was $5,699,300

upon which Star-Kist paid ad valorem taxes in the amount of

$394,316.

*All statutory references are to the Revenue and Taxation Code

unless otherwise indicated.

*Seetion 225 was repealed in 1984, Section 219 now exempts all

business inventory from taxation. (Added by Stats. 1980, ch. 411, § 8,

p. 801, urgency, eff. July 11, 1980, operative Jan. 1, 1981.)

A-3

Relying on Zee Toys, Inc. v. County of Los Angeles

(1978) 85 Cal.App.3d 763 [149 Cal.Rptr. 750], hearing

denied, January 17, 1979, affirmed without opinion by an

equally divided court in Sears, Roebuck and Co. v. County

of Los Angeles (1981) 449 U.S. 1119 [67 L.Ed.2d 106, 101

S.Ct. 933], in which the Court of Appeal held that section

225 violated the commerce clause and was void, the trial

eourt denied plaintiff's refund claim. This appeal

followed.

I

(la) Before reaching the merits of defendants’ charge

that section 225 violates the commerce clause, we must

determine whether defendants have “standing” to raise

such a challenge to a state law. The term “standing” in

this context refers not to traditional notions of a plain-

tiff’s entitlement to seek judicial resolution of a dispute,”

but to a narrower, more specific in-

(42 Cal.3d 6]

quiry focused upon the internal political organization of

the state: whether counties and municipalities may invoke

the federal Constitution to challenge a state law which

they are otherwise duty-bound to enforce.

Counties and cities must look to the state Constitution

and the Legislature for their creation and delegated

powers. (Cal. Const., art. XI, §§ 1, 2.) (2) Counties are

*One could argue that, in practical effect, defendants’ willful

compaign to supplant section 225’s exemption by ignoring it and

forcing plaintiff to bring a refund suit makes defendants the “true”

plaintiffs in this controversy. Regardless of party designation, how-

ever, the threshold question as to whether the county and cities may

challenge the statute remains the same.

A-4

‘merely [] political subdivision[s] of state government,

exercising only the powers of the state, granted by the

state, created for the purpose of advancing ‘the policy of

the state at large....’”’ (County of Marin v. Superior

Court (1960) 53 Cal.2d 633, 638-639 [2 Cal.Rptr. 758, 349

P.2d 526].) (3) Though municipalities may enjoy a

greater degree of autonomy with regard to local affairs.

(Wilson v. Beville (1957) 47 Cal.2d 852, 858-859 [306

P.2d 789] [charter cities]), they too are subject to the

sovereign’s right to extend, withdraw or modify the pow-

ers delegated. (Trenton v. New Jersey (1923) 262 U.S. 182,

187 [67 L.Ed. 937, 941, 43 S.Ct. 534, 29 A.L.R. 1471]. See

People v. California Fish Co. (1913) 166 Cal. 576, 606

[138 P. 79].)’

(4) This legislative control over cities and counties is

reflected in the well-established rule that subordinate

political entities, as “creatures” of the state, may not

challenge state action as violating the entities’ rights

under the due process or equal protection clauses of the

Fourteenth Amendment or under the contract clause of

the federal Constitution. “A municipal corporation, cre-

ated by a state for the better ordering of government, has

no privileges or immunities under the federal] constitution

"The California Constitution provides that, with limited exception,

“Ta]ll property is taxable...’ (Cal. Const., art, XIII, § 1, subd. (a).)

The Constitution further empowers the Legislature to “provide for

property taxation of all forms of tangible personal property,” and to

“classify such personal property for differential taxation or for

exemption.” (Cal. Const., art. XIII, § 2.) The Legislature, in turn,

has delegated responsibility for assessment, levy and collection of

property taxes to local government. (Gov. Code, §§ 23004, subd. (e),

43000 et seq., 51501.) This delegated authority, however, does not

include the power to originate a tax; only those taxes expressly

authorized by statute may be assessed. (County of Los Angeles v.

Jones (1939) 13 Cal.2d 554, 561-562 [90 P.2d 802].)

which it may invoke in opposition to the will of its creator.

[Citations.]” (Williams v. Mayor of Baltimore (1933) 289

U.S. 36, 40 [77 L.Ed. 1015, 1020, 53 S.Ct. 431]. Accord

Newark v. New Jersey (1923) 262 U.S. 192, 196 [67 L.Ed.

943, 946, 43 S.Ct. 539] [equal protection clause]; Trenton,

supra, 262 U.S. at pp. 185-187 [67 L.Ed. at pp. 940-941]

[contract clause and Fourteenth Amendment]; Mallon v.

City of Long Beach (1955) 44 Cal.2d 199, 209 [282 P.2d

481] [contract clause]; City of Los Angeles v. City of

Artesia (1977) 73 Cal.App.3d 450, 457 [140 Cal.Rptr.

684] [contract clause and due process clause].) This

rule’s application beyond Fourteenth Amendment and

contract clause challenges remains unsettled.

[42 Cal.3d 7]

In City of South Lake Tahoe v. California Tahoe (9th

Cir. 1980) 625 F.2d 231, certiorari denied, 449 U.S. 1039

[66 L.Ed.2d 502, 101 S.Ct. 619] (White, Marshall, JJ.,

dis.) the Ninth Cireuit interpreted this “no standing”

rule as absolutely barring political subdivisions from

challenging state statutes on any federal constitutional

ground. Regrettably, the South Lake Tahoe decision pro-

vides little guidance as to the court’s reasoning in choos-

ing a per se rule.

The plaintiffs in South Lake Tahoe, the city and individ-

ual city council members, brought an action of declara-

tory and injunctive relief, attacking the validity of certain

land use regulations and transportation plans adopted by

a regional planning agency on four separate constitu-

tional grounds: the plans and regulations violated the

Fifth and Fourteenth Amendments in arbitrarily diserim-

inating between similarly situated landowners, violated

the right to travel, resulted in the taking of property

without just compensation and conflicted with regulations

A-6

of a congressionally approved bi-state planning agency in

violation of the supremacy clause. The court rejected the

city’s claim of standing to raise the constitutional claims

based on the regulation’s injurious effects on its munici-

pal finances. After noting that “‘[p]olitical subdivisions

may not challenge the validity of a sate statute under the

Fourteenth Amendment,’ ” and pointing out that it makes

no difference whether the challenge is to the state or to a

political subdivision thereof, the court simply concluded,

“(t]hus, the city may not challenge: [the] plans and

ordinances on constitutional grounds.” (South Lake

Tahoe, supra, 625 F.2d at p. 233.) The court also denied

the individual council members standing for lack of a

personal stake in the matter, remarking in passing:

‘“[t]the eouncilmembers do not seek here to represent the

City’s interests; if they did their claims would be barred

along with the City’s.” (Id., at p. 237.)

Other courts have declined to read the “no stainding”

rule as an absolute bar to federal constitutional chal-

lenges by political subdivisions. These courts have held

that the rule does not extend to supremacy clause chal-

lenges to state laws. (Rogers v. Brockette (5th Cir. 1979)

588 F.2d 1057, cert. den., 444 U.S. 827 [62 L.Ed.2d 35,

100 S.Ct. 52]; San Diego Unified Port Dist. v. Gianturco

(S.D.Cal. 1978) 457 F.Supp. 283, affd. 651 F.2d 1306,

eert den., 455 U.S. 1000 [71 L.Ed.2d 866, 102 S.Ct. 1631};

Triplett v. Tiemann (D.Neb. 1969) 302 F.Supp. 1239;

Carlsbad Union School District of San Diego Country v.

Rafferty (S.D.Cal. 1969) 300 F.Supp. 434 affd. (9th Cir.

1970) 429 F.2d 337; Douglas Independent School District

No. 3 v. Jorgenson (D.S.D. 1968) 293 F.Supp. 849;

Hergenreter v. Hayden (D.Kan. 1968) 295 F.Supp. 251.) —

Rogers and Gianturco provide meaningful insight into the

purpose of the “no standing” rule and its one established

exception.

A-7

[42 Cal.3d 8]

The Rogers court recognized a school district’s stand-

ing to raise a supremacy clause challenge to a state law

requiring a district with a substantial number of low

income students to participate in a federally subsidized

school breakfast program. The court also upheld the

statute against the school district’s challenge.

In resolving the standing question, the Rogers court

studied the historic basis of the “no standing” rule and

concluded that the rule has generally been applied in two

types of cases: those in which the state has altered

political subdivisions’ boundaries (e.g., Hunter v. Pitts-

burgh (1907) 207 U.S. 161 [52 L.Ed. 151, 28 S.Ct. 40]),

and those involving state modification of a benefit previ-

ously granted to a subdivision (e.g., Trenton, supra, 262

U.S. 182). (Rogers, supra, 588 F.2d at p. 1067.) The court

then went on to suggest that “... these cases are substan-

tive interpretations of the constitutional provisions in-

volved” (id., at p. 1068), and, as such, simply “adhere to

the substantive principle that the Constitution does not

interfere with a state’s internal political organization.”

(Id., at p. 1070.) Because there is no comparable limit on

Congress’ power to “interfere” in a state’s internal politi-

eal organization, the court concluded, a subdivision of the

state may raise a claim that state law conflicts with

federal law and is therefore void. (/d., at pp. 1070-1071.)

The Gianturco court took a related, but somewhat

different approach in reaching the conclusion that a politi-

eal subdivision may invoke the supremacy clause despite

its lack of capacity to raise other constitutional claims. In

Gianturco, a port district operating an airport challenged

a flight curfew imposed by the California Department of

Transportation as violative of the supremacy clause in

that the field was preempted by federal law.

allie, |

A-8

BAA rialaeaeans aes

Discussing the standing issue, the Gianturco court

noted that a distinction between the supremacy clause

and other constitutional provisions lies in the purpose

served by each. Provisions like the Fourteenth Amend-

ment and the contract clause “confer fundamental rights

on individual citizens’; the supremacy clause, in contrast,

“establishes a structure of government which defines the

relative powers of states and the federal government.”

(Id., 457 F.Supp. at p. 290.) Political subdivisions cannot

assert “constitutional rights which are intended to limit

governmental action vis-a-vis individual citizens” but may

invoke the supremacy clause to challenge preempted state

law. (Jbid.) Otherwise “such legislation and regulation

often would go unchecked even though expressly prohib-

ited by the Constitution.” (Ibid.)

(1b) Accepting the Rogers-Gianturco rationale for ex-

empting supremacy clause claims from the rule that

political subdivisions cannot challenge state law on the

basis of the federal Constitution, the question remains

whether

[42 Cal.3d 9]

this type of commerce clause claim also falls outside the

confines of the rule. Based on the similarity between the

commerce clause and the supremacy clause, we conclude

that it does.

The commerce clause empowers Congress “[t]o regu-

late commerce with foreign nations, and among the sev-

eral states, and with Indian tribes.” (U.S. Const., art. I,

§ 8, el. 3.) (5) As the United States Supreme Court has

long emphasized, “ ‘[t]he Commerce Clause, even without

implementing legislation by Congress is a limitation upon

the power of the States.’ ”’ (Boston Stock Exchange v. State

Tax Comm’n (1977) 429 U.S. 318, 328 [50 L.Ed.2d 514,

4

4

A-9

523, $7 S.Ct. 599], quoting Freeman v. Hewit (1946) 329

U.S. 249, 252 [91 L.Ed. 265, 271, 67 S.Ct. 274].) In this

respect, the commerce clause resembles the supremacy

clause in that it, albeit indirectly, ‘defines the relative

powers of states and the federal government.” (Gian-

turco, supra, 457 F.Supp. at p. 290.)

(le) The defendants’ claim in the instant case accents

this definitional framework. Defendants assert that the

foreign commerce tax exemption interferes with Con-

gress’ exclusive control over commerce by potentially

nullifying the value of protective tariffs and by discrimi-

nating against domestic commerce. The discrimination is

merely a side effect of the institutional intrusion. As

noted in Zee Toys, supra, 85 Cal.App.3d 763, which in-

volved an identical challenge to section 225, “[t]he only

function of the discriminatory nature of the tax is to

demonstrate its capacity to interfere with the authority of

Congress over commerce. The interest herein sought to be

protected is not personal to dealers in nonexempt inter-

state goods; it relates more to the national interest in

observing the boundaries of state and federal power.”’ (Id.,

at p. 778.) (Italies added.)

Viewing the commerce clause challenge in this light

leads to the conclusion that political subdivisions might

legitimately raise such claims. State action cannot be so

insulated from serutiny that encroachments on the fed-

eral government’s constitutional powers go unredressed.

In the present case, for example, there is a real possibility

that the constitutionality of the Legislature’s scheme of

differential taxation of business inventories would have

gone unchecked absent challenge by those entities

charged with administration of the program. Moreover,

because the foreign commerce exception precluded the

local taxing agencies from taxing business inventories

A-10

they otherwise would have been authorized to tax, the

agencies experienced significant revenue loss.® Thus, their

interest in testing the constitutionality of the statute is

unmistakable.

[42 Cal.3d 10]

We therefore conclude that defendants have standing

to raise this commerce clause challenge. This result com-

ports with the Legislature’s implicit recognition of the

right to raise federal constitutionai claims in section 538,

enacted in 1978. (Ante, fn. 2.) Section 538, the Legisla-

ture’s direct response to Los Angeles County’s refusal to

implement section 225’s exemption (Stats. 1978, ch. 1188,

§ 4, p. 3840), requires an assessor who believes a tax

measure to be unconstitutional or otherwise invalid to

seek declaratory relief to that effect, instead of simply

imposing an assessment contrary to the questioned law.

Because the statutory language speaks to unconstitution-

ality generally, without differentiating between the fed-

eral and state Constitutions, and the legislative history

reflects a concern with the commerce clause challenge to

section 225, it is reasonably likely that the Legislature

did anticipate claims based upon the federal Constitution.

*When section 225 was enacted, federal law precluded taxation of

imports in their original containers. That restriction was abandoned

in Michelin Tire Corp. v. Wages (1976) 423 U.S. 276 [46 L.Ed.2d 495,

96 S.Ct. 535]. Thus, the Legislature’s assumption that under section

225 “the net loss of revenues to any local agency is not significant”

(Stats. 1976, ch. 1126, § 4, p. 2746) did not prove to be correct. (See

Zee Toys, supra, 85 Cal.App.3d at p. 783.)

se ace ae

A-11

et

(6a) We turn to the question whether section 225, in

exempting only certain business inventories from ad

valorem taxation, violates the commerce clause.

(7) The commerce clause reserves to Congress exclu-

sive power “[t]o regulate commerce with foreign nations

and among the several states...” (U.S. Const., art. I, § 8,

el. 3.) The clause does not, however, abrogate the “ ‘power

of the states to tax for the support of their own govern-

ments.” (Boston Stock Exchange, supra, 429 U.S. at p.

328 [50 L.Ed.2d at pp. 523-524], quoting Gibbons v.

Ogden (1824) 22 U.S. (9 Wheat.) 1, 199 [6 L.Ed. 23,

71].) Determining whether a state tax exceeds the

bounds of permissible state action under the clause is

often a difficult task. As the United States Supreme Court

noted in Boston Stock Exchange, “... when ealled upon to

make the delicate adjustment between the national inter-

est in free and open trade and the legitimate interest of

the individual States in exercising their taxing powers,

the Court has counseled that the result turns on the

unique characteristics of the statute at issue and the

particular circumstances in each ease.” (/d., 429 U.S. at

p. 329 [50 L.Ed.2d at p. 524].)

(6b) As enacted, section 225 provided: “Personal

property manufactured or produced, (1) outside this

state and brought into this state for transshipment out of

the United States or (2) outside of the United States and

brougyt into this state for transshipment out of this state,

for sale in the ordinary course of trade or business shall

be exempt from taxation. The exemption under this sec-

tion shall not apply to personal property in manufactur-

ing process or production. Such process or production

shall not include the breaking in bulk, labeling, packag-

ing, relabeling, or repackaging.

|

A-12

(42 Cal.3d 11]

of such property.” As all other business inventories were

subject to ad valorem taxation (§ 201; former § 219 re-

pealed by Stats. 1980, ch. 411, § 7), goods manufactured

*The history of this exemption deserves mention. For over a

century, states were prohibited from imposing even nondiscrimina-

tory ad valorem taxes on imported goods while they retained their

character as imports. (Low v. Austin (1872) 80 U.S. (13 Wall.) 29

[20 L.Ed. 517].) In 1972, this court held that imports could be taxed

onee removed from their original containers. (Volkswagen Pacific v.

City of Los Angeles (1972) 7 Cal.3d 48 [101 Cal.Rptr. 869, 496 P.2d

1237].) The Legislature subsequently enacted section 225, presuma-

bly to countermand Volkswagen Pacific. Over 35 states have adopted

similar “free port” laws, many of which extend tax-exempt status to

stored imports. (Japan Line, Ltd. v. County of Los Angeles, The

Foreign Commerce Clause: An Economic Approach to the Negative

Effects of State Taxation (1980) 13 J. Mar. L.Rev. 793, 812.)

In 1976, the United States Supreme Court overruled Low and

lifted the ban on state imposition of taxation on imported goods. In

1978, in Zee Toys, supra, 85 Cal.App.3d 763, section 225 was held to

be unconstitutional. After this court denied hearing, the United

States Supreme Court granted certiorari, ultimately affirming with-

out opinion based on a four-to-four split. (Sears, Roebuck & Co. v.

County of Los Angeles (1981) 449 U.S. 1119 [67 L.Ed.2d 106, 101

S.Ct. 933].)

In the meantime, Los Angeles County was the only county to

disregard section 225 and assess taxes on imported goods in tax

years 1976-1978. In 1978, on the basis of Zee Toys, the State Board of

Equalization instructed the remaining counties to levy “escaped

assessments” for the years in question. Once again the Legislature

stepped in, and passed a protective measure prohibiting such escaped

assessments for tax years prior to 1979-1980. (§ 225.3. Added by

Stats. 1979, ch. 902, § 2, eff. Sept. 22, 1979; repealed by Stats. 1984,

ch. 678, § 12.)

Finally, in 1981, the Legislature enacted section 219, prohibiting

taxation of all business inventories. Thus, only a limited number of

importers were assessed ad valorem taxes during section 225’s

limited lifespan. 5,

A-13

in another state and transshipped through California to a

third state were not entitled to the exemption. Thus, those

domestic companies exclusively engaged in interstate

commerce would be taxed, while those involved in export-

ing or importing would not be.

At first glance this distinction may not appear particu-

larly troubling.’° Taxation of foreign commerce has tradi-

tionally been off limits to the states. “Although [the

commerce clause] grants Congress power to regulate

commerce ‘with foreign Nations’ and ‘among the several

Sates’ in parallel phrases, there is evidence that the

Founders intended the scope of the foreign commerce

power to be the greater.” (Japan Line, Lid. v. County of

Los Angeles (1979) 441 U.S. 434, 448 [60 L.Ed.2d 336,

347-348, 99 S.Ct. 1813]. See also Michelin, supra, 423 U.S.

at p. 286 [46 L.Ed.2d at p. 503].) “Laws which concern

the exterior relations of the United States with other

nations and governments are general in their nature, and

should proceed exclusively from the legislative authority

of the nation.” (Bowman v. Chicago & N. R. Co. (1888)

125 U.S. 465 482 [31 L.Ed. 700, 706, 8.

[42 Cal.3d 12]

S.Ct. 689].) (8) Thus, a state tax scheme may not inter-

fere with Congress’ plenary power to regulate commerce

with other nations.

See e.g., Westinghouse Electric Corp. v. Tully (1984) 466 U.S. 388,

406, footnote 12 [80 L.Ed.2d 388, 403, 104 S.Ct. 1856] (“We

reiterate that it is not the provision of the [franchise tax] credit [for

export income] that offends the Commerce Clause, but the fact that it

is allowed on an impermissible basis, i.e., the percentage of a specific

segment of the corporation’s business that is conducted in New

York.”’)

A-14

The United States Supreme Court’s decision in Japan

Lines reinforces this basic constitutional restriction. In

Japan Lines the court struck down California’s imposition

of ad valorem tax on cargo containers owned by a foreign

entity, used exclusively in international commerce and

fully taxed in the domiciliary country. After emphasizing

that “[w]hen construing Congress’ power to ‘regulate

commerce with foreign Nations,’ a more extensive consti-

tutional inquiry is required” than that ordinarily em-

ployed in determining whether a tax unduly burdens

interstate commerce (441 U.S. at p. 446 [60 L.Ed.2d at p.

346]), the court proceeded to identify two additional

factors to be considered: the risk of multiple taxation and

potential impairment of the nation’s ability to “speak with

one voice” in foreign affairs. (Jd., at pp. 446-449 [60

L.Ed.2d at pp. 346-348].) The court then held that appli-

cation of the tax to instrumentalities of foreign commerce

resulted in multiple taxation and interfered with federal

uniformity in regulation of foreign trade, and, thus, vio-

lated the commerce clause. (/d., at pp. 451-454 [60

L.Ed.2d at pp. 349-351].) The court acknowledged that

this foreign commerce exemption might result in diserimi-

nation against domestic commerce, but concluded that

Congress would have to resolve such “problems that

admit only of a federal remedy.” (/d., at p. 457 [60

L.Ed.2d at p. 353].)

Japan Lines, however, does not support the proposition

that any state tax on foreign commerce is per se invalid.

In faet, in Container Corp. v. Franchise Tar Bd. (1983)

463 U.S. 159 [77 L.Ed.2d 545, 103 S.Ct. 2933] in which

the court upheld California’s “three-factor” formula for

unitary tax assessments against a commerce clause chal-

lenge, the court stressed that the Japan Lines holding was

limited to the narrow issue presented in the case:

“*(W)hether instrumentalities of commerce that are

A-15

owned, based and registered abroad and that are used

exclusively in international commerce, may be subjected

to apportioned ad valorem property taxation by a State.’ ”

(Container Corp., supra, 463 U.S. at pp. 187-188, fn. 24

[77 L.Ed.2d at p. 568].) The court further implied that

Japan Lines had gone too far in suggesting that the risk

of multiple taxation alone would necessarily invalidate a

state tax. The tax must be considered in context, inelud-

ing the feasibility of alternative modes of taxation, even if

it actually results in multiple taxation. (/d., at pp. 190-

194 [77 L.Ed.2d at pp. 569-571].)

In addition, and of particular importance to our diseus-

sion, the Container Corp. court also refined the second

prong of the Japan Lines test: whether

[42 Cal.3d 13]

the tax interfered with the federal government’s ability to

“speak with one voice” in foreign affairs. The court

instructed: “In conducting this inquiry, ... we must keep

in mind that if a state tax merely has foreign resonances,

but does not implicate foreign affairs, we cannot infer,

‘[a]bsent some explicit directive from Congress, .. . that

treatment of foriegn income at the federal level mandates

identical treatment by the States.’ [Citations.] Thus, a

state tax at variance with federal policy will violate the

‘one voice’ standard if it either implicates foreign policy

issues which must be left to the Federal Government or

violates a clear federal directive.” (Container Corp.,

supra, 463 U.S. at p. 194 [77 L.Ed.2d at pp. 571-572].)

Absent interference with such a directive," nondiserim-

inatory ad valorem taxation of business inventories does

"For example, imported goods stored in customs bonded ware-

houses [19 U.S.C. §1557(a)) are immune from state taxation.

A-16

not intrude upon the federal government’s foreign com-

merce power. In Michelin, supra, 423 U.S. 276 the court

upheld, against an imvort-export clause challenge, Geor-

gia’s assessment of a nondiscriminatory ad valorem tax

on imported goods stored as business inventory.’ The

court reasoned that because the purpose of such a prop-

erty tax is to recover the costs, on an apportioned basis,

of locally profided services such as police and fire protec-

tion, and the tax is imposed on all property regardless of

origin, the tax could not be characterized as an “impos: or

duty” levied on imported goods. The tax was therefore

valid.

In reaching the conclusion that a nondiscriminatory ad

valorem tax could be imposed on all goods including

imports, the court dismissed the concern that the tax

somehow interfered with the federal government’s com-

merce power. The court stressed: “It is obvious that such

nondiseriminatory property taxation can have no impact

whatsoever on the Federal Government's exclusive regu-

lation of foreign commerce, probably the most improtant

purpose of the Clause’s prohibition. By definition, such a

tax does not fall on imports as such because of their place

of origin. It cannot be used to create special protective

tariffs or particular preferences for certain domestic

goods, and it cannot be applied selectively to encourage

or discourage any importation in a manner inconsistent

with federal regulation.” (Michelin, supra, 323 U.S. at p.

(Xerox Corp. v. County of Harris (1982) 495 U.S. 145 [74 L.Ed.2d

323, 103 S.Ct. 523].)

Although Michelin involved the import-export clause (U.S.

Const., art. I, § 10, el. 2) the court noted in Japan Lines that the

import-export clause and the commerce clause reflect virtually inden-

tical policies with regard to regulation ov commerce with foreign

nations. (/d., 441 U.S. at pp. 449-450, fn. 14 [60 L.Ed.2d at pp. 348-

349].)

To ae

“ Me,

eee ee Se

——_

A-17

286 [46 L.Ed.2d at pp. 503-504].) The court further

explained, “(t]he Import-Export Clause clearly prohibits

stats taxation based on the foreign origin of the imported

goods, but it cannot be read to accord imported goods

preferential treatment that permits escape from uni-

[42 Cal.3d 14]

form taxes imposed without regard to foreign origin for

services which the State supplies. [Citation.]” (Jd., at p.

287 [46 L.Ed.2d at p. 504].)

Michelin teaches that nondiscriminatory ad valorem

taxation of business inventories, including inventories

linked to foreign commerce, is constitutional and has no

impact on the federal government’s foreign commerce

power. Though we deal, in the instant case, not with

imposition of the tax, but with an exemption, the Michelin

rule is fully applicable. Because the tax itself has no

bearing on the foreign commerce power, an exemption

from that tax cannot look to the foreign commerce power

for its legitimacy. Stated differently, the exemption can-

not be necessary to preserve Congress’ power to regulate

foreign commerce if the tax itself does not interfere with

the power to so regulate. The business inventories tax

poses no threat to the federal government's ability to

“speak with one voice” when regulating commerce with

other nations. (6c) The exemption, then, which leaves in

place a tax scheme that appears to discriminate against

domestic commerce, cannot be sustained on the tradi-

tional ground that the states may not interfere with

congressional power “to regulate commerce with foreign

nations.” (U.S. Const., art. I, $8, el. 3.)

Though the exemption cannot be justified as an attempt

to protect the foreign commerce power, it can be chal-

lenged as interfering with that power. “Only the federal

A-18

government can fix the rules of fair competition when

such competition is on an international basis.” (Bethlehem

Steel Corp. v. Board of Commissioners (1969) 276

Cal.App.2d 221, 226 [80 Cal.Rptr. 800}.) As the Zee Toys

court noted, “[t]he principal mode through which Con-

gress has exercised [this] power...is by the imposition

of import tariffs, designed for the most part to afford

protection to United States manufactured goods

threatened by foreign competition.” (Jd., 85 Cal.App.3d

at 774.) Taxation exemptions extended only to foreign

goods may operate to nullify the curative effect of feder-

ally imposed tariffs. Conversely, when all goods located

within a state are taxed on a nondiscriminatory basis for

provided services, federal regulation of competition be-

tween interstate and foreign commerce is unimpeded by

state policy. The nondiscriminatory tax “cannot be ap-

plied selectively to encourage or discourage any importa-

tion in a manner inconsistent with federal regulation.”

(Michelin, supra, 423 U.S. at p. 286 [46 L.2d.2d at p.

504].) (Italics added.] Thus, the exemption may actually

offend rather than preserve Congress’ exclusive power to

regulate foreign commerce.

Because Congress’ foreign commerce power may not be

invoked to curtail serious examination of the tax scheme

in question, we must consider whether section 225’s ex-

emption results in discrimination against interstate com-

merece. “A tailored tax, however accomplished, must

receive the careful

[42 Cal.3d 15]

scrutiny of the courts to determine whether it produces a

forbidden effect on interstate commerce.” (Complete Auto

Transit, Inc. v. Brady (1977) 430 U.S. 274, 289, fn. 15 [51

L.Ed.2d 326, 337, 97 S.Ct. 1076].)

A-19

Typically, cuestions involving discrimination against

interstate commerce arise in the context of favored treat-

ment of intrastate commerce over interstate commerce.”

(E.g., Maryland v. Lowisiana (1981) 451 U.S. 725 [68

L.Ed.2d 576, 101 S.Ct. 2114]; Lewis v. BT Investment

Managers, Inc. (1980) 447 U.S. 27 [64 L.Ed.2d 702, 100

S.Ct. 2009]; Hughes v. Oklahoma (1979) 441 U.S. 322 [60

L.Ed.2d 250, °9 S.Ct. 1727].) This juxtaposition is not

exclusive however. For example, in Boston Stock Exz-

change, supra, 429 U.S. 318 the court concluded that a

state tax statute that discriminated between two classes

of interstate commerce (securities sales) was unconstitu-

tional. Despite the rather unique nature of the instant

case, the same analysis should apply.

(9) In Complete Auto Transit, supra, 430 U.S. 274, the

court adopted a four-part test for determining whether a

state tax imposed on interstate commerce will survive a

commerce clause challenge. Such a tax is constitutional if

it “...is applied to an activity with a substantial nexus

with the taxing State, is fairly apportioned, does not

discriminate against interstate commerce, and is fairly

related to the services provided.” (Id., at p. 279 [5]

L.Ed.2d at p. 331].) Because a nondiscriminatory ad

valorem personal property tax on business inventories

would satisfy each of these requirements (see Michelin,

supra, 423 U.S. 276) we need foeus our inquiry only on

the third prong of the test.

(6d) The exemption at issue not only removes the

inventory of foreign companies transshipping through

California from within the seope of the property tax, it

‘8 “The very purpose of the Commerce Clause was to create an area

of free trade among the several States.’” (Boston Stock Exchange,

supra, 429 U.S. at p. 328 [50 L.Ed.2d at 523].)

A-20

exempts domestic companies involved in importing or

exporting as well. Star-Kist is a California corporation

which transships goods manufactured outside the country

through California for sale in other states. To the extent

that domestic companies, like Star-Kist, can take advan-

tage of section 225’s tax exemption and thereby gain a

competitive edge over domestic competitors operating

exclusively within the United States, discrimination

against a distinct class of interstate commerce is ocecur-

ring. Thus the tax fails the Complete Auto Transit test of

constitutionality.

As the Michelin court noted, “there is no reason why an

importer should not bear his share of [the] costs [of state

services] along with his competitors handling only domes-

tie goods.” (Jd., 423 U.S. 276, 287 [46 L.Ed.2d 495,

[42 Cal.3d 16]

504].) Viewing the exemption, as we must, “‘... in light

of its actual effect considered in conjunction with other

provisions of the State’s tax scheme’” (Maryland v.

Louisiana, supra, 451 U.S. 725, 756 [68 L.Ed.2d 576,

601]), we conelude that the exemption constitutes an

undue burden on interstate commerce in violation of the

commerce clause.

owe

The judgement is affirmed.

Bird, C. J., Mosk, J., Broussard, J., Grodin, J., and

Uchiyama (Mikio), J.,* coneurred.

LUCAS, J. — I respectfully dissent. Applying improper

analysis, the majority incorrectly strikes down as viola-

*Judge, Justice Court for the Fowler-Caruthers Judicial District

of Fresno County, assigned by the Chairperson of the Judicial

Council.

see ee ee iieiantina =

A-21

tive of the federal ecommerce clause (U.S. Const., art. I,

§ 8, el. 3) former Revenue and Taxation Code section 225

which provided a tax exemption for business inventory of

foreign origin or destination transshipped through Cali-

fornia.’ Although presently all business inventory is ex-

empt from taxation (Rev. & Tax. Code, § 219) and former

section 225 has been repealed (Stats. 1984, ch. 678, § 10,

p. 188), I write separately because today’s decision im-

properly precludes the Legislature from future use of this

valid device to attract foreign commerce to California

ports.

The commerce clause, investing in Congress the power

“[t]o regulate commerce with foreign nations, and among

the several States...” (U.S. Const., art. I, $8, el. 3) also

acts, by its own force, as a limitation on state power.

(Boston Stock Exchange v. State Tax Comm’n (1977) 429

U.S. 318, 328-329 (50 L.Ed. 2d 514, 523-524, 97 S.Ct.

599].) This limitation applies to laws implicating both the

foreign and interstate components of the commerce

clause, but has never been read as an absolute ban on the

states’ authority to enact legislation touching upon either

the foreign or interstate commerce powers. (Ibid.; Cooley

v. Board of Wardens (1852) 53 U.S. (12 How.) 299, 319

[13 L.Ed. 996, 1004].) As I will demonstrate, the statute

at issue here, extending a business inventory exemption

to importers and exporters transshipping through Cali-

fornia while denying the exemption to interstate shippers,

does not violate either of these implicit limitations on

state power.

‘All further statutory references are to the Revenue and Taxation

Code.

A-22

[42 Cal.3d 17]

I. Foreign Commerce Clause

Conceding that nondiscriminatory ad valorem taxes on

foreign business inventories would have no impact on the

federal government’s foreign commerce power (ante,

p. 13), the majority concludes that the section 225 exemp-

tion from this otherwise valid tax may actually offend that

power, as it “may operate to nullify the curative effect of

federally imposed tariffs.” (Ante, p. 14.) I submit that

such speculation is not sufficient to strike down an other-

wise valid exercise of state power.

In Japan Line, Ltd. v. County of Los Angeles (1979) 441

U.S. 434, 449-450, footnote 14 [60 L.Ed.2d 336, 348-349,

99 S.Ct. 1813], the high court reiterated the three main

policies used in federal commerce clause analysis:

“(T]he Federal Government must speak with one voice

when regulating commercial relations with foreign gov-

ernments...; import revenues were to be the major

suuree of revenue of the Federal Government and should

not be diverted to the States; and harmony among the

States might be distrubed unless seabord States... were

prohibited from levying taxes on [goods in transit].’”

The exemption provided by former section 225 does not

conflict with any of these concerns.

In Container Corp. v. Franchise Tax Bd. (1983) 463

U.S. 159, 193-194 [77 L.Ed.2d 545, 571, 103 S.Ct. 2933],

the Supreme Court amplified upon the first policy concern

identified in Jpana Line, inquiring whether the state

legislation “impair[s] federal uniformity in an area where

federal uniformity is essential” (Japan Line, supra, 441

U.S. at p. 448 [60 L.Ed.2d at p. 347]), preventing ‘the

Federal Government from ‘speaking with one voice’ in

international trade...” (id., at p. 453 [60 L.Ed.2d at p.

5 Seyret an pe lc .

A-23

351]). The Container Corp. court stated that merely

because a state tax has “foreign resonances,” it does not

necessarily implicate foreign affairs; rather, violation of

the ‘one voice” standard occurs if the state tax “either

implicates foreign policy issues which must be left to the

‘Federal Government or violates a clear federal directive.”

(Container Corp., supra, 463 U.S. at p. 194 [77 L.Ed.2d at

pp. 571-572], italics in originel.)

Container Corp. concerned, in part, whether application

of California’s “unitary business” principle to tax foreign

subsidiaries violated the federal commerce clause. In

concluding that the state’s tax did not violate the “one

voice” standard, the court found that the state tax did not

implicate foreign policy by creating a threat of economic

retaliation by other nations. Although recognizing foreign

policy issues, other than economic retaliation could be

implicated, the court noted that the absence of an amicus

euriae brief by the Solicitor General raising such con-

cerns, primarily the province

[42 Cal.3d 18]

of the executive branch and Congress, was some indica-

tion that no such other considerations were involved. (Jd.,

at pp. 195-196 [77 L.Ed.2d at p. 571].)

Analyzing whether the tax violated a “clear federal

directive,” termed “essentially a species of pre-emption

a. alysis,” the court observed that the existing tax treaties

did not address state taxing powers, the regulation of

which Congress had debated but chosen not to regulate.

(Id., at pp. 196-197 [77 L.Ed.2d at pp. 573-574].) The

eovrt concluded the California tax was thus not “pre-

empted by federal law or fatally inconsistent with federal

policy.” (Id., at p. 197 [77 L.Ed.2d at p. 573], italies

A-24

added.) The same conclusion should be reached regard-

ing the exemption in the present case.

Primarily, the majority has failed to demonstrate how

the tax exemption at issue affects any foreign policy.

Clearly, the effect of this legislation would not offend our

foreign trading partners. Rather, any equivalent ‘retalia-

tion” by other nations, in the form of tax exemption for

United States exports would be welcome. Additionally, we

find the views of the Solicitor General as stated in Sears

Roebuck and Co. v. County of Los Angeles et al. (1981) 449

U.S. 1119 [67 L.Ed.2d 106, 101 S.Ct. 933], persuasive

evidence that former section 225 has not implicated any

other foreign policy matters. In Sears Roebuck and Co. v.

County of Los Angeles et al., supra 449 U.S. 1119, the

Supreme Court reviewed a California Court of Appeal

opinion finding former section 225 unconstitutional, and

requested the Solicitor General to submit a brief on the

matter. Responding to this request, the Solicitor General

stated his view that the exemption did not violate the

commerce clause. Though ultimately the Court of Appeal

opinion was summarily affirmed by an equally divided

court, the Solicitor General’s opinion remains significant

to the extent that it serves as an indication that the

Executive Branch itself did not perceive former section

225 as interfering with foreign policy. (See Container

Corp., supra, 463 U.S. at pp. 195-196 [77 L.Ed.2d at pp.

572-573 ].)

Neither does the challenged exemption violate a clear

federal directive. Unlike Japan Line, where the court cited

the Customs Convention on Containers (441 U.S. at p.

452 [60 L.Ed.2d at p. 350] ), a specific directive in conflict

with the state’s taxing policy, the majority herein

presents only the possibility that some hypothetical tariff

may be impeded by the inventory exemption. Instead, like

heal we hedinaann ‘Stendaciitiend

A-25

the situation in Container Corp., there is no indication

either that by imposing a tariff, Congress has intended to

occupy the field, precluding taxation or exemption, or that

allowing the exemption would defeat the purposes of

congressional action. Neither the Supreme Court nor

Congress has ever required states to impose ad valorem

taxes. Absent some concrete showing that the exemption

is preempted by federal

[42 Cal.3d 19]

law, or “fatally inconsistent with federal policy.” I would

hold that this seemingly harmless exemption does not

impair federal uniformity, preventing the federal govern-

ment from “speaking with one voice” in international

trade.

The exemption also cannot be found to conflict with the

other major federal commerce clause concerns. Obviously,

providing an exemption does not divert import revenues

to the states. Moreover, unlike a tax imposed by a sea-

board state which could adversely affect inland states,

leading to disharmony, this tax exemption would not lead

to interstate rivalry.” The tax exemption provided by

former section 225 did not violate any of the policies

forming the basis of the foreign commerce clause. Rather

than impeding the flow of foreign commerce, this exemp-

tion, if anything, facilitated this channel of trade.

"As the court noted in Japan Line, the concern of preserving

harmony among the states requires essentially the same inquiry as

whether a state tax interferes with interstate commerce (441 U.S. at

p. 449, fn. 14 [60 L.Ed.2d at pp. 348-349]), a matter which we treat

more fully post. (See post, pp. 7-9.)

A-26

II. Interstate Commerce Clause

Former section 225’s exemption also may not be invali-

dated as interfering with interstate commerce. The major-

ity applies the test of Complete Auto Transit, Inc. v. Brady

(1977) 430 U.S. 274, 279 [51 L.Ed.2d 326, 331, 97 S.Ct.

1076], which is used to determine whether a state taz

interferes with interstate commerce, to analyze whether

this exemption unduly burdens interstate commerce. I

submit that the application of Complete Auto in this

wholly different context is erroneous.

The majority cites no case where Complete Auto is used

to analyze whether a state tax exemption or eredit vio-

lates the commerce clause. Moreover, the inappropriate-

ness of applying Complete Auto in this context is further

demonstrated when one attempts to apply the three parts

of its four-part analysis which the majority does not

discuss.” For example, it seems absurd to say that a

state’s choice not to impose a tax somehow violates the

commerce clause unless the activity not taxed has a

substantial nexus to that state. Likewise, it is difficult to

imagine what commerce clause policy concerns are pro-

moted by requiring that the exemption be “fairly appor-

tioned” or “fairly related” to the services for which the

state has chosen not to tax.

"In Complete Auto, the high court stated that a state tax may be

sustained “against a Commerce Clause challenge when [1] the tax is

applied to an activity with a substantial nexus with the taxing State,

[2] is fairly apportioned, [3] does not discriminate against interstate

commerce, and [4] is fairly related to the services provided by the

State.” (430 U.S. at p. 279 [51 L.Ed.2d at p. 331].) The majority

diseusses only the third prong.

A-27

[42 Cal.3d 20]

(See ante, p. 15.) These various factors relate to the

propriety of taxing the in-state activity, assuring that the

taxes are properly exacted for the services rendered by

the state; the test was not designed to determine whether

it is proper to exempt such property from tax.

The proper inquiry is whether the exemption statute,

protecting only imports and exports, burdens the free

flow of commerce among the several states. A recent

United States Supreme Court case appears controlling. In

Westinghouse Electric Corp. v. Tully (1984) 466 U.S. 388

[80 L.Ed.2d 388, 104 S.Ct. 1856], the State of New York,

responding to federal tax legislation affecting “Domestic

International Sales Corporations” (DISC), restructured

its procedures for taxing distributions received by a

parent corporation from its subsidiary. It also provided in

part for a “partially offsetting tax credit,” applied to

DISC ineome from export products “shipped from a

regular place of business of the taxpayer within [New

York].” (/d., at p. 393 [80 L.Ed.2d at p. 394].) The

amount of the eredit, applied to the parent corporation’s

tax obligation for business activity conducted in New

York, was dependent not only on the amount of goods the

DISC shipped from New York, but also upon the percent-

age of the DISC’s shipping activity conducted in New

York vis-a-vis other states.* Parent corporations with

*Though computed according to a five-step formula (id., at pp. 393-

394 [80 L.Ed.2d at pp. 394-395]), the amount of the credit was, in

essence, dependent upon the DISC’s “export ratio.” In other words,

the eredit otherwise applied to the New York DISC revenues attribu-

table to the parent was further multiplied by the quotient derived

from dividing DISC’s New York gross receipts by the DISC’s total

gross receipts.

A-28

identical business allocation percentages (the percentage

of its total business activity conducted in New York), and

identical New York DISC income were taxed differently

depending upon the amount of DISC income derived from

shipping activities in other states. (/d., at pp. 400-402, fn.

9 [80 L.Ed.2d at pp. 398-400].)

In analyzing whether “the method of allowing the

credit is discriminatory in a manner that violates the

Commerce Clause...” (id., at p. 399 [80 L.Ed.2d at p.

398], italics added), the court foeused on the fact that

“not only does the New York tax scheme ‘provide a

positive incentive for increased business activity in New

York State’... it [also] penalizes increases in the DISC’s

shipping activities in other States.” (Jd., at pp. 400-401

{80 L.Ed.2d at p. 398].) The court also reiterated the

settled principles that “‘“[t]he very purpose of the

Commerce Clause was to create an area of free trade

among the several States”’” (id., at p. 402 [80 L.Ed.2d

at p. 400]), and that “‘[n]o State, consistent with the

Commerce Clause, may “impose a tax which discriminates

against interstate commerce... by pro-

[42 Cal.3d 21]

viding a direct commercial advantage to local busi-

ness.” ’” (Id., at p. 403 [80 L.Ed.2d at p. 400].)

Acknowledging that in each case the court must bal-

ance the national interest in free trade with the state’s

interest in exercising its taxing powers (id., at p. 403),

the court found the prii.. ples enunciated in Boston Stock

Exchange, supra, and Maryland v. Lousiana (1981) 451

U.S. 725 [68 L.Ed.2d 576, 101 S.Ct. 2114], controlling.”

‘In Maryland v. Louisiana, supra, the court struck down Louisi-

ana’s “First-Use” tax statute, imposing a tax on natural gas brought

into the state, while providing exemptions and credits to local users,

as “unquestionably discriminating against interstate commerce in

A-29

In both cases, the court struck down state statutes impos-

ing greater economic burdens on similar activities occur-

ring out-of-state than occurring in-state. The court

eoneluded that the New York tax credit violated the

commerce clause because it “‘foreclose[d] tax-neutral

decisions and ...create([d]...an advantage’ for firms

operating in New York by placing ‘a discriminatory bur-

den on commerce to its sister States.’ [Citation.]”’ (Westing-

house Electric, supra, 466 U.S. at p. 406 [80 L.Ed.2d at p.

402], italics added.)*®

Nonetheless, the Westinghouse Electric court hastened

to add that not all schemes to attract a particular seg-

ment of industry into a state are unconstitutional. The

court stated: “We reiterate that it is not the provision of

the credit that offends the Credit Clause, but the fact that

it is allowed on an impermissible basis, i.e., the percent-

age of a specific segment of the corporation’s business

that is conducted in New York. As in Boston Stock Ex-

change, we do not ‘hold that a State may not compete with

other States for a share of interstate commerce; such

competition lies at the heart of a free trade policy. We

hold only that in the process of competition no State may

favor of local interests.” (Jd., at p. 756 [68 L.Ed.2d at p. 602].)

Likewise in Boston Stock Exchange, supra, the court found violative of

the commerce clause a stock transfer tax reducing the tax burden on

nonresidents engaged in in-state (but not out-of-state) sales of stock,

and creating a maximum tax limit for all stock buyers for purchases

made in-state (but not out-of-state). The court found the tax uncon-

stitutional because it “discriminates between two types of interstate

transactions in order to favor local commercial interests over out-of-

state businesses. . .” (id., at p. 335 [50 L.Ed.2d at p. 528], italies

added), concluding that a state may not build up its own commerce

by burdening businesses in other states. (Jbid.)

Significantly, the court did not cite or apply Complete Auto in

either Westinghouse Electric or Maryland v. Louisiana, supra.

A-30

discriminatorily tax the products manufactured or the

business operations performed in any other State.’ (Id., at

pp. 406-407, fn. 12 [80 L.Ed.2d at p. 403], italies added.)

The tax exemption granted by former section 225 to

attract commerce to California ports was not grounded on

an “impermissible basis.”’ There was

[42 Cal.3d 22]

no penalty imposed on activity conducted outside of

California. Shippers not wishing to pay the inventory tax,

levied as a quid pro quo for the services rendered by

California, simply may have chosen to transship through

another state. Unlike Boston Stock Exchange, Westing-

house Electric, and Maryland v. Louisiana, supra, no

burden was imposed on interstate commerce by placing a

penalty or disincentive on the choice to transact business

in another state. Moreover, unlike the paradigm com-

merece clause case, local interests are not favored. (See

Westinghouse Electric, supra, 466 U.S. at p. 403 [80

L.Ed.2d at p. 400].) The exemption is available regard-

less of the residency of the shipper or the place of

manufacture of the goods, with the exception of those

goods whose point of origin is California which do not

qualify for the exemption because they are not being

“transshipped” through California.

In my view, respondents’ claim at bottom is really an

equal protection attack. They are complaining in essence

that the state’s differential treatment of import and ex-

port business inventories from that of domestie goods

lacks a rational basis. Assuming respondents would have

standing to raise this issue, an unlikely conclusion under

the majority’s analysis (see ante, p. 6), I submit that

former section 225 would by upheld against such a chal-

lenge because the distinction it draws “ ‘is neither capri-

cious nor arbitrary, and rests upon some reasonable

A-31

consideration of difference or policy ....’” (Allied Stores

of Ohio v. Bowers (1959) 358 U.S. 522, 527 [3 L.Ed.2d

480, 485, 79 S.Ct. 437] [upholding against an equal

protection clause challenge an Ohio statute providing

only nonresidents an exemption for merchandise held in

storage, from a tax otherwise imposed on “[a]l] personal

property located and used in business in the state’’].)

One such reasonable policy consideration may be the

greater threat of business flight from California posed by

importers and exporters rather than by those dealing in

interstate commerce, which justifies a greater incentive

for the former group. (See Zee Toys, Inc. v. County of Los

Angeles (1978) 85 Cal.App.3d 763, 776 [149 Cal.Rptr.

750].) In any event, the Legislature was not required to

expressly state these policy considerations. The statute

would not violate the equal protection clause “if any state

_ of facts reasonably can be conceived that would sustain it.

[Citations.]”” (Allied Stores, supra, 358 U.S. at p. 528 [3

L.Ed.2d at p. 486].)

The exemption provided by former section 225 does not

run contrary to the limitations on state power implicit in

either the foreign or interstaate components of the com-

meree clause. The exemption neither interferes with the

federal government’s ability to speak with one voice when

reguiating commercial relations with foreign govern-

ments, nor does it burden the free flow of interstate

commerce by imposing a penalty on business activity con-

{42 Cal.3d 23]

dueted outside of California. I would find the tax exemp-

tion constitutional and would reverse the trial court’s

ruling denying plaintiff's claim for a refund of the im-

properly levied inventory tax.

B-1

APPENDIX B

No. 78-1577

IN THE SUPREME COURT OF THE

JINITED STATES

OCTOBER TERM, 1978

SEARS, ROEBUCK AND CoO., PETITIONER

v.

CouNTY OFr LOS ANGELES AND CITY OF COMPTON

ON PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APLEAL OF THE STATE OF

CALIFORNIA, SECOND APPELLATE DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

WADE H. McCREE, JR.

Solicitor General

M. CARR FERGUSON

Assistant Attorney General

STUART A. SMITH

Assistant to the

Solicitor General

ERNEST J. BROWN

Attorney

Department of Justice

Washington, D.C. 20530

INDEX

Page

PN OD os ck can dna decent een 1

GIs 6.5 6.5 00k bcc0 6a taensas ee 1

Qmentiom Presented . oo .ccc ccc ccuccocstdecccn. 2

Constitutional provision and statutes involved..... 2

EPO ET EP EET CPE Rm? 3

IIE Ts 0.53 6.0.0 0c35a0500ais bene 5

IIS 6.0'0. 5.60 09k 45-000 bNe eae 12

CITATIONS

Cases:

Allied Stores of Ohio v. Bowers, 358 U.S. 522 .. 6

American Steel & Wire Co. v. Speed, 192 U.S.

nah CECE C ET TORE ETT ETO ny 8

Asakura v. Seattle, 265 U.S. 332 ............. 6

Bacon v. Illinois, 227 U.S. 504............... i)

Boston Stock Exchange v. State Tax Comm'n,

ee Te ND CATED 6. oon ave ccdewovenstann. oe

Braniff Airways v. Nebraska State Board, 347

PM ono ba0ks 6bknd hed sek 7

Brewing Co. v. Liquor Comm’n., 305 U.S. 391.. 9

Brown v. Houston, 114 U.S. 622.............. 8

Brown v. Maryland, 25 U.S. (12 Wheat). 419.. 7

Carson Petroleum Co. v. Vial, 279 U.S. 95..... 9

Chy Lung v. Freeman, 92 U.S. 275 ........... 6

Crew Levick Co. v. Pennsylvania, 245 U.S. 292 9

Dept. of Revenue v. James Beam Co., 377 U.S.

UPN AS weak 00.806 sd shuns oew ee ese 9

Empresa Siderurgica v. Merced Co., 337 U.S.

DN esd k een videncecdcudedece 8

B-3

Cases — (Continued):

Page

Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 7

ne ses eee 8 ee

General Oil Co. v. Crain, 209 U.S. 211........

Hauenstein v. Lynham, 100 U.S. 4838..........

Henderson v. Mayor of New York, 92 U.S. 259

Hines v. Davidowitz, 312 U.S. 52.............

Hooven & Allison Co. v. Evatt, 324 U.S. 652 ...

Hostetter v. Idlewild Liquor Corp., 377 U.S.

DmaHDBDHA OO NH

Re OW ana ssn ccc ccs e eee 6,9

Japan Line, Ltd. v. County of Los Angeles, No.

77-1876, (April 30, 1979) ................. 7,8

Joy Oil Co. v. State Tax Comm’n., 337 U.S.

eC ylawinvscasscsees 8,9

Kolovrat v. Oregon, 366 U.S. 187............. 6

Low v. Autin, 80 U.S. (13 Wall.) 29.......... 9,10

Massachusetts v. United States, 4385 U.S. 444

RES = 13

McGoldrick v. Gulf Oil Corp., 309 U.S. 414 ... 6

Michelin Tire Corp. v. Wages, 423 U.S. 276.... 7,10

Minnesota v. Blasius, 290 U.S. 1 ............. 9

Nielsen v. Johnson, 279 U.S. 47 ..........45-. 6

Ott v. Mississippi Barge Line, 336 U.S. 169.... 7

People v. Compagnie Gen. Transatlantique, 107

I 6

Richfield Oil Corp. v. State Board, 329 U.S. 69 7

Sonneborn Brosl v. Cureton, 262 U.S. 506 ..... 8

State Board v. Young’s Market Co., 299 U.S. 59 9

Ware & Hylton, 3 U.S. (3 Dall.) 199 ......... 6

Cases — (Continued):

Page

Washington Rev. Dept. v. Stevedoring Assn., 435

ok | Serer re es errr sere ee 9

Si 0k ROO ECOL Ce ers 9

Wilow Corp. v. Pennsylvania, 294 U.S. 169 .... 8

Woodruff v. Parham, 75 U.S. (8 Wall.) 123 ... 8

Zaschernig v. Miller, 389 U.S. 429............ 6

Constitution, statutes and regulations:

United States Constitution, Article I, Section 8,

onan kare ck dc hs ot 0 ae a il 2, 5, 6, 8

Internal Revenue Code of 1954 (26 U.S.C.):

ks, RP a range ae wn are eae 19

RO ee ree ree 10

I NS gy awiak cou dan daceees 10

re er ee err re 10

1975 Cal. Stats., ch. 1126, $§ 1 and 2......... 2

Ree Ss I, Hs I oko op heb eke 2

ROrt Rs es WE a Es hike ns a ds cca ys 2

Cal. Rev. & Tax. Code § 225 (West Supp.

BPE 6 5.65 ke ee CAR RR CLM ERE Se Ce 2, 4, 5

Cal. Rev. & Tax. Code § 225.1 (West Supp.

RR ish ok aoe edhe ae REN Co Re eS 2, 3,4

Cal. Rev. & Tax. Code § 253.10 (West Supp.

i) Ee ee ee Ne trie mir ahi arin I ae 2

)

B-5

Constitution, statues and regulations — (Continued):

Treasury Temporary Regulations in

Connection with the Airport and Airway

Revenue Act of 1970:

soe Be & OS | errr 10

gee A M&O: } rere 10

ae ee Oe) errr rere 11

ke Me 8 err 11

B-6

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1978

No. 78-1577

SEARS, ROEBUCK AND CO., PETITIONER

Vv.

CouNnTYy OF Los ANGELES AND CITY OF COMPTON

ON PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, SECOND APELLATE DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court's

invitation of June 4, 1979.

OPINIONS BELOW

The order of the trial court is not officially reported.

The opinion of the Court of Appeal (Pet. App. 1-29) is

reported at 85 Cal.App. 3d 763. The denial by the Su-

preme Court of California of a petition for hearing (Pet.

2) is reported at 149 Cal. Rptr. 764.

B-7

JURISDICTION

The decision of the Court of Appeal was entered on

October 25, 1978 (Pet. 2; Pet. App. 1). The Supreme

Court of California denied petition for hearing on Janu-

ary 17, 1979 (Pet. 2). The petition for a writ of certiorari

was filed on April 16, 1979. The jurisdiction of this Court

is invoked under 28 U.S.C. 1257(3).

J

QUESTION PRESENTED

The United States will discuss the following question:

Whether the California property tax exemption for per-

sonalty manufactured or produced (1) outside California

and brought into the State for transshipment out of the

United States; or (2) outside of the United States, and

brought into California for transshipment out of the

State, for sale in the ordinary course of trade or business,

is invalid under the Commerce Clause of the United

States Constitution.

CONSTITUTIONAL PROVISION AND STATUTES

INVOLVED

Article I. Section 8, Clause 3 of the United States

Constitution provides: “The Congress shall have Power

*** To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes”.

Sections 225 and 225.1 of the Cal. Rev. & Tax. Code

(West), enacted by 1975 Cal. Stats., ch. 1126, at 2746,

§§ 1 and 2, during the period here involved’ provided as

follows:

‘Although Section 225.1 of the Cal. Rev. & Tax. Code (West) was

repealed by 1977 Cal. Stats., ch. 246, § 4, its provisions were simulta-

neously reenacted as Section 253.10 of the Rev. & Tax. Code, ny 1977

Cal. Stats., ch. 246, § 7.

B-8

§ 225. Personalty brought into state for transship-

ment outside state or United States; exemption

Personal property manufactured or produced, (1)

outside this state and brought into this state for

transshipment out of the United States, or (2)

outside of the United States and brought into this

state for transshipment out of this state, for sale in

the ordinary course of trade or business shall be

exempt from taxation. The exemption under this

section shall not apply to personal property in manu-

facturing process or production. Such process or

production shall not include the breaking in bulk,

labeling, packaging, relabeling, or repackaging of

such property.

§ 225.1. Method of Claiming _ transshipment

exemption

A person claiming the transshipment exemption

under Section 225 may either claim this exemption

by (1) a percentage method of determining property

held for transshipment on hand at a particular loca-

tion by allocating a portion of the total inventory,

using the percentage determined by dividing the

total out-of-state shipments by the taxpayer from

that location during the preceding year by the total

of such shipments from that location during such

year, or (2) an actual method as evidenced by con-

tracts of sale on the tax lien date, and a full, true and

correct inventory of ail property held for transship-

ment together with the date of receipt of the same,

the date of withdrawal of the same, the point of

origin thereof, and the point of ultimate destination

thereof.

B-9

STATEMENT

Petitioner brought this suit for refund of ad valorem

personal property taxes paid under protest to the County

of Los Angeles and the City of Compton.

The facts were stipulated (Pet. App. 1-2, 4) and may be

summarized as follows: Petitioner is engaged in the busi-

ness of selling goods at retail, both in California and

elsewhere. On March 1, 1976, the tax lien date for pur-

poses of the annual California ad valorem tax on personal

property, petitioner held tangible personal property in

warehouses in the County of Los Angeles and City of

Compton. The property in question had been manufac-

tured or produced outside the United States, and had

been imported by petitioner and placed in warehouses for

distribution both within and without California for pur-

poses of sale in the ordinary course of petitioner’s busi-

ness. Petitioner’s distribution warehouses in the County

of Los Angeles were devoted almost entirely to goods

imported from foreign countries, particularly from loca-

tions in the Pacific area. The rate of turnover at the

warehouses averaged approximately three times per year.

Petitioner intended to ship the goods as quickly as its

distribution operations permitted. Pursuant to Sections

225 and 225.1 of the California Revenue and Taxation

Code, petitioner applied to the total amount of goods

manufactured or produced outside the United States and

held in its warehouses in Los Angeles County on March 1,

1976, the fraction represented by the out-of-state ship-

ments from those locations during the preceding year

divided by the total shipments from those locations dur-

ing that year. Petitioner accordingly claimed a transship-

ment property tax exemption for property having a value

of $19,373,089 (Pet. App. 1-3, 4-5).

B-10

Respondents denied the claimed exemption. They as-

serted (1) that properly construed, Section 225 exempted

only goods in transit through the State, and (2) that even

if Section 225 were construed to exempt imported goods

held in the State by the owner for disposal or use, it

would violate the United States Constitution by regulat-

ing interstate and foreign commerce in interfering with

foreign affairs, because it extended no exemption to inter-

state goods. Petitioner thereupon paid the tax under

protest and instituted this action for refund in the Supe-

rior Court of Los Angeles County. The Superior Court

upheld petitioner’s claimed exemption (Pet. App. 1-2, 5-

6).

The Court of Appeal reversed (Pet. App. 29). Although

it rejected respondents’ statutory argument that Section

225 applied only to goods “in transit” (Pet. App. 7-10), it

held that the statutory exemption of foreign goods regu-

lated interstate and foreign commerce and was therefore

invalid under the Commerce Clause of the United States

Constitution (Pet. App. 6, 10-18). It also suggested that

the exemption interfered with the power of the Congress

to impose tariffs (Pet. App. 15-16). In the Court of

Appeal’s view, the statutory exemption gave goods of

foreign origin a competitive advantage over goods manu-

factured in other states and brought to California for

transshipment in interstate commerce. It concluded that

“state taxes which discriminate between classes of inter-

state and foreign goods on the basis of their origin are not

permitted” (Pet. App. 14). With three Justices dissent-

ing, the Supreme Court of California denied a petition for

hear (Pet. 2).

B-11

ARGUMENT

In holding that the California property tax exemption

for foreign goods destined for interstate commerce or

out-of-state goods destined for export violates the Com-

) merece Clause of the Constitution and interferes with

Congress’ power to impose tariffs, the Court of Appeal

misinterpreted the decisions of this Court.

1. Seetion 225 of the California Revenue and Taxation

Code exempts from taxation while held in California,

imported goods destined for other states and goods from

other states destined for export. It does not, however,

exempt domestic goods destined for interstate commerce.

On the authority of this Court’s decision in Boston Stock

Exchange v. State Tax Comm'n, 429 U.S. 318 (1977), the

Court of Appeal held that the statute unconstitutionally

discriminated against interstate commerce and therefore

violated the Commerce Clause. But Boston Stock Ex-

change has no bearing on the question presented in this

ease. The prohibited discrimination in that case was one

that provided “a direct commercial advantage to local

business” by virtue of “laws that favor local enterprise at

the expense of out-of-state business” (429 U.S. at 329) by

taxation “in a manner that discriminates between two

types of interstate transactions in order to favor local

commercial interests over out-of-state business” (id. at

335).

Here, in contrast, the statutory property tax exemption

did not favor local business at the expense of out-of-state

business. It favored imports and exports.” There is, how-

ever, no constitutional prohibition against favoring im-

*Cf. Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959). There, the

issue was addressed under the Equal Protection Clause of the

Fourteenth Amendment rather than under the Commerce Clause.

——7E

B-12

ports over domestic goods. The Import-Export Clause of

the Constitution itself makes such a differentiation. The

decisions of this Court have therefore consistently held

-ovalid state statutes that have had an adverse impact

upon foreign nationals or upon foreign commerce.’ Nor

does the Commerce Clause require a different result. As

this Court reaffirmed in Washington Rev. Dept. v. Steve-

doring Assn., 435 U.S. 734, 751 (1978), “[T]he Import-

Export Clause states an absolute ban, whereas the Com-

merce Clause merely grants power to Congress.” See also

Richfield Oil Corp. v. State Board, 329 U.S. 69, 75 (1946).

When only the Commerce Clause is involved, this Court

only last Term in Japan Line, Ltd. v. County of Los

Angeles, decided April 30, 1979 (No. 77-1378), explicitly

rejected the premise that “Commerce Clause analysis is

identical, regardless of whether interstate or foreign com-

merce is involved. *** When Construing Congress’

power to ‘regulate Commerce with foreign Nations,’ a

more extrensive constitutional inquiry is required.” (Slip

op. 11-12). Japan Line held that shipping containers

employed in foreign commerce, based and owned in Ja-

pan, were not subject to the apportioned property taxa-

tion to which domestic shipping containers engaged i:

See, e.g., Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Fairfaz’s

Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranech) 603 (1813); Brown v.

Maryland, 25 U.S. (12 Wheat.) 419 (1827); Henderson v. Mayor of

New York, 92 U.S. 259 (1875); Chy Lung v. Freeman, 92 U.S. 275

(1875); Hawenstein v. Lynham, 100 U.S. 483 (1879); People v. Compa-

gnie Gen. Transatlantique, 107 U.S. 59 (1882); Asakura v. Seattle, 265

U.S. 332 (1924); Nielsen v. Johnson, 279 U.S. 47 (1929); McGoldrick v.

Gulf Oil Corp., 309 U.S. 414 (1940); Hines. v. Davidowitz, 312 U.S. 52

(1941); Kolovrat v. Oregon, 366 U.S. 187 (1961); Hostetter v. Idlewild

Liquor Corp., 377 U.S. 324 (1964); Dept. of Revenue v. James Beam

Co., 377 U.S. 341 (1964); Zschernig v. Miller, 389 U.S. 429 (1968).

B-13

interstate commerce would have been subject.’ Although

this Court in Michelin Tire Corp. v. Wages, 423 U.S. 276

(1976), held that a state was not constitutionally required

to exempt imports held in the original package from

generally imposed property taxation, nothing in the deci-

sion suggested that the exemption that had previously

deen constitutionally required under decisions overruled

by Michelin Tire was thereafter constitutionally

prohibited.

As the Court in Michelin Tire pointed out (423 U.S. at

283-294), the considerations underlying the Import-Ex-

port Clause were that the federal government speak with

one voice in regulating commercial regulations with for-

eign governments, that import revenues not be diverted to

the states, and that seaboard states with ports of entry

not be permitted to be toll-takers at the expense of states

not situated as favorably geographically. The California

statute serves all of these purposes. The fact that it serves

and advances constitutional policy somewhat more fully

than the minimum required of the state” does not justify

the Court of Appeal’s ruling that it violates the Commerce

Clause.

‘See Ott v. Mississippi Barge Line, 336 U.S. 169 (1949); Braniff

Airways v. Nebraska State Board, 347 U.S. 590 (1959).

*Even before the Michelin Tire decision, the California exemption

was somewhat broader than the minimum then constitutionally re-

quired. By its terms, the exemption for imports persisted beyond the

original package, for it permitted breaking bulk, repackaging, ete.

With regard to goods held for export, it granted exemption prior to

movement in the stream of exportation, as defined by this Court's

decisions in Empresa Siderurgica v. Merced Co., 337 U.S. 154 (1949)

and Joy Oil Co. v. State Tax Comm’n., 337 U.S. 286 (1949). It is not

questioned, however, that the goods exempted from tax were goods

that had been imported and goods that were subsequently exported.

B-14

During the more than 100 years prior to the Michelin

Tire decision, while the rule of Low v. Austin, 80 U.S. (13

Wall.) 29 (1871), and Hooven & Allison Co. v. Evatt, 324

U.S. €52 (1945), required exemption of imported goods in

original packages from generally imposed state property

taxes, the Court consistently held that goods that had

moved in interstate commerce in their original packages

enjoyed no comparable exemption.® When the Court over-

ruled Low and Hooven, it was not on the basis of any

discrimination favoring imports over goods in interstate

commerce, but only because the considerations that gave

rise to the Import-Export Clause did not require exemp-

tion. Nothing in Michelin Tire suggested that the pre-

existing exemption was now to be constitutionally

prohibited.’

*Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1868); Brown v.

Houston, 114 U.S. 622 (1885); American Steel & Wire Co. v. Speed, 192

U.S. 500 (1904); Sonneborn Bros. v. Cureton, 262 U.S. 506, 509, 510-

513 (1923); Wilow Corp. v. Pennsylvania, 294 U.S. 169 (1935).

"Indeed, in contexts other than property taxes on goods in the

original package, the Court has treated imports or exports markedly

differently from goods shipped in interstate commerce. Compare

Dept. of Revenue v. James Beam Co., 377 U.S. 341 (1964) and Hostetter

v. Idlewild Liquor Corp., 377 U.S. 324 (1964) with State Board vy.

Young’s Market Co., 299 U.S. 59 (1936) and Brewing Co. v. Liquor

Comm'n, 305 U.S. 391 (1939); Crew Levick Co. v. Pennsylvania, 245

U.S. 292 (1917) with Western Live Stock v. Bureau of Revenue, 303

U.S. 250 (1938); Carson Petroleum Co. v. Vial, 279 U.S. 95 (1929)

with General Oil Co. v. Crain, 209 U.S. 211 (1908), Bacon v. Illinois,

227 U.S. 504 (1913), and Minnesota v. Blasius, 290 U.S. 1 (1933).

Carson Petroleum Co. v. Vial, supra, may have been heavily qualified

by the decision in Joy Oil Co. v. State Tax Comm'n. 337 U.S. 286

(1949), as the dissent in the latter case asserted (337 U.S. at 291-

292). But the result in Carson Petroleum was distinguished from

other contemporary decisions principally by the fact that the oil

involved was destined for export (see 279 U.S. at 106-109).

B-15

In sum, the decisions of this Court involving imports,

exports, and foreign commerce uniformly emphasize that

one of the principal purposes of the Constitution was to

assure that the states did not impede or obstruct importa-

tion, exportation, or foreign commerce. The Court in

Michelin Tire overruled Low v. Austin only when it was

demonstrated that application of a generally imposed

property tax to imports in the original package did not

substantially impede importation or foreign commerce.

Washington Rev. Dept. v. Stevedoring Assn., 435 U.S. 734,

751-755 (1978). By favoring imports and exports, Section

225 of the California Revenue and Taxation Code facili-

tates importation and exportation and assures that im-

ports and exports passing through the state will not be

impeded even to the extent of the impact of a generally

applicable property tax. While such action may not be

constitutionally required, it is not, as the decision below

erroneously held, constitutionally prohibited. Nothing in

the Commerce Clause prevents a state from favoring

imports and exports beyond the extent required by the

Import-Export Clause.

2. a. In further support for its invalidation of the

statutory exemption for imported goods, the Court of

Appeal suggested (Pet. App. 15-16) that Section 225

impedes the power of the Congress to determine the

effective tariff applicable to imported goods. But this

reasoning is contrary to this Court’s analysis in Michelin

Tire. In considering the effect of removing the exemption

for imported goods required by earlier decisions, the

Court pointed out (423 U.S. at 287): “It may be that such

taxation could diminish federal impost revenues to the

extent its economic burden may discourage purchase or

importation of foreign goods. The prevention or avoidance

of this incidental effect was not, however, even remotely

an objective of the Framers in enacting the prohibition.”

B-16

b. Furthermore, Sections 4271 and 4272 of the Inter-

nal Revenue Code of 1954 show that the California exemp-

tion for imports and exports is entirely consistent with

congressional policy. Section 4271 imposes a tax of 5

pereent upon the amount paid for transportation of prop-

erty by air, but Section 4272(a) limits this to “transporta-

tion by air which begins and ends in the United States.”

Section 4272(b) excludes from tax, under regulations

prescribed by the Secretary, “transportation of property

in the course of exportation * * * by continuous move-

ment, and in due course so exported.”

Under Treasury Temporary Regulations in Connection

with the Airport and Airway Revenue Act of 1970 (26

C.F.R.), Seetion 154.2-1(e) (1) and (2), transportation

will be considered to begin and end at the points of origin

and destination as shown by a through airwaybill, or, if no

such airwaybill has been issued, then the export or import

character of the shipment may be shown by a contract or

other written evidence showing the beginning point and

ending point of air transportation. And Section 154.2-

1(e)(1) of the Regulations is explicit in providing that

transportation from a point outside the United States to a

point inside the United States will not be considered

broken “even though there may be stopovers in the United

States (such as, for example, to consolidate cargo at a

‘gateway’ city).”

With regard to exports, the tax is not applicable to the

segment of air transportation in the United Siates even

though the mode of transportation in export is other than

by air. Section 154.2-1(d) (1) of the Regulations provides:

For example, the tax does not apply to air transpor-

tation from Chicago to New York if the property is in

the course of exportation, by continuous movement,

by boat from New York to Europe and in due course

B-17

is so exported. Delays caused by circumstances be-

yond the control of the shipper (such as labor dis-

putes or natural disasters) will not interrupt

continuous movement. Property arriving at a gate-

way city by air may be repacked or consolidated with

other property without interrupting continuous

movement.

Under Section 154.2-1(d) (3) of the Regulations, payment

of the tax may be deferred for six months to establish the

fact of export “in due course” within that period. Proof of

export received after six months will establish a ground

for refund of the tax paid.

The foregoing provisions show that even when the

facilities of the airways of the United States are em-

ployed," Congress has exempted from the air transporta-

tion excise tax goods that are in fact imports and exports,

and has provided flexible rules permitting stopovers,

repackaging, and consolidation of cargo in the course of

movement without loss of exemption. California's removal

of property tax burdens upon imports and exports is

therefore entirely consistent with congressional policy.

"Cf. Massachusetts v. United States, 435 U.S. 444 (1978).

B-18

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

WaDE H. McCREE, JR.

Solicitor General

M. CARR FERGUSON

Assistant Attorney General

STUART A. SMITH

Assistant to the Solicitor

General

ERNEST J. BROWN

Attorney

August 1979

C-1

APPENDIX C

[152 Cal.App.3d 258]

[Civ. Ne. 69023. Second Dist., Div. One. Feb. 23, 1984. ]

STAR-KIST FOODS, INC., Plaintiff and Appellant, v.

COUNTY OF LOS ANGELES et al., Defendants and

Respondents.

OPINION

SPENCER, P. J. —

INTRODUCTION

Plaintiff Star-Kist Foods, Ine. (Star-Kist) appeals

from a judgment denying its request that the court order

defendants, County of Los Angeles, City of Los Angeles

and City of Long Beach, to refund ad valorem taxes paid

by plaintiff. |

STATEMENT OF FACTS

Plaintiff seeks the refund of ad valorem taxation levied

upon tangible personal property, inventories of canned

tuna fish, in plaintiff's possession on March 1, 1976. The

property had been produced outside the United States,

brought into California for shipment out of California,

stored at various locations within California for eventual

shipment out of California and was for sale in the ordi-

nary course of trade or business.

At trial, plaintiffs based their claim for refund due on

Revenue and Taxation Code section 225; section 225

exempts from taxation “property manufactured or pro-

duced... (2) outside of the United States and brought

into this state for trans-shipment out of this state, for sale

C-2

in the ordinary course of trade or business....”’ In

denying plaintiff's claim, the trial court relied on Zee

Toys, Inc. v. County of Los Angeles (1978) 85 Cal.App.3d

763 [149 Cal.Rptr. 750] in which two cases were

consolidated,

[152 Cal.App.3d 262]

Zee Toys, Inc. v. County of Los Angeles and Sears, Roebuck

& Co. v. County of Los Angeles. In Zee Toys, this district

determined the County of Los Angeles had standing to

assert that section 225 violated the federal constitution

and that section 225 did, in fact, violate the federal

commerce clause.” The Zee Toys decision nullified the

exemption provided by section 225.

The California Supreme Court denied a petition for

hearing on Zee Toys by a vote of four to three; Zee Toys

did not pursue the matter beyond the California Supreme

Court. Sears, Roebuck and Company’s petition for writ of

certiorari in the United States Supreme Court, however,

was granted. A per curiam decision was rendered, af-

firming the California appellate opinion by a four-to-four

vote. (Sears, Roebuck & Co. v. County of Los Angeles

(1980) 446 U.S. 915 [64 L.Ed.2d 269, 100 S.Ct. 1848].)

‘Los Angeles County taxpayers were required to pay the tax

despite the exemption; in no other counties were taxpayers similarly

taxed.

“Article I, section 8, clause 3 of the United States Constitution

provides Congress with the power “[t]o regulate Commerce with

foreign Nations and among the several States, and with the Indian

Tribes.”

C-3

CONTENTION.

Plaintiff contends the trial court erroneously denied its

request for refund due on the basis of the decision in Zee

Toys, Inc. v. County of Los Angeles, supra, 85 Cal.App.3d

763.

DISCUSSION

(la) Plaintiff asserts defendants’ standing to raise the

issue of the unconstitutionality of Revenue and Taxation

Code section 225 is barred by the well established rule

fa] municipal corporation, created by a state for the

better ordering of government, has no privileges or immu-

nities under the federal constitution which it may invoke

in opposition to the will of its creator.” (Williams v.

Mayor (1933) 289 U.S. 36, 40 [77 L.Ed. 1015, 1020, 53

S.Ct. 431]; Newark v. New Jersey (1923) 262 U.S. 192, 196

[67 L.Ed. 948, 946, 43 S.Ct. 539].) If the only ground for

defendants’ standing was its desire to vitiate a statute

purportedly unconstitutional, we would agree. On the

facts of the case at bar, however, defendants are entitled

to be heard, for they have demonstrated a direct economie

injury.

(2) Our conelusion is based on the essence of the

question of standing, i.e., whether a litigant is able to

allege a “personal stake in the outcome.” (Baker v. Carr

(1962) 369 U.S. 186, 204 [7 L.Ed.2d 663, 678, 82 S.Ct.

691].) Standing is awarded to the party who is able to

allege “injury in fact.” (Schlesinger v. Reservists to Stop

the War (1974) 418 U.S. 208, 218 [41 L.Ed.2d 706, 717, 94

S.Ct. 2925].) In this state, standing is awarded

C-4

[152 Cal.App.3d 263]

to the party who alleges “facts sufficient to establish

status as a ‘real party in interest.’ ” (Mendoza v. County of

Tulare (1982) 128 Cal.App.3d 403, 414 [180 Cal. Rptr.

347], quoting from Friendly Village Community Assn.,

Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220,

224 [107 Cal.Rptr. 123].)

(1b) The claim asserted by defendants here differs

substantially from that of the “generalized interest of all

citizens in constitutional governance.” (Schlesinger v.

Reservists to Stop the War, supra, 418 U.S. 208, 217 [41

L.Ed.2d 706, 716].) Defendants seek neither privilege

nor immunity and are, therefore, not barred from stand-

ing by the Williams v. Mayor rationale cited ante.

For defendants, compliance with Revenue and Taxation

Code section 225 results in the loss of significant revenue

in the form of tax dollars. Defendants stand to suffer a

direct economic injury, therefore, should we, for any

reason, conclude plaintiff is entitled to a tax refund.

Faced with the loss of revenue resulting from the opera-

tion of section 225, defendants are surely “real part [ies]

in interest.” (Mendoza v. County of Tulare, supra, 128

Cal.App.3d 403, 414.) Such loss has been recognized as

an alternate ground for standing by no less an authority

than the United States Supreme Court in Board of Educa-

tion v. Allen (1968) 392 U.S. 236, 241, footnote 5 [20

L.Ed.2d 1060, 1064, 88 S.Ct. 1923]. (See City of South

Lake Tahoe v. California Tahoe (1980) 449 U.S. 1039.

1040, fn. 1 (66 L.Ed.2d 502, 508, 101 S.Ct. 619] (dis. opn.

of White, J.).)

(3a) Having recognized defendants’ standing to ques-

tion the constitutionality of Revenue and Taxation Code

section 225, we direct our attention to the propriety of the

C-5

conclusion reached in Zee Toys, Inc. v. County of Los

Angeles, supra, 85 Cal.App.3d 763. Primarily on the basis

of United States Supreme Court decisions and the court's

articulation of rationale in support thereof rendered sub-

sequent to Zee Toys, we find cause to reach a contrary

conclusion; i.e., the exemption provided by section 225

does not violate the commerce clause of the United States

Constitution and is, therefore, not unconstitutional.

(4) Initially, we note that the conclusion reached

herein is not barred by the Supreme Court’s affirmance in

Sears, Roebuck and Co., as “an affirmance by an equally

divided court [is not] entitled to precedential weight.

[Citation.]" (Neil v. Biggers (1972) 409 U.S. 188, 192 [34

L.Ed.2d 401, 407, 93 S.Ct. 375].) Thus, we do not con-

strue the decision in Sears, Roebuck and Co. as requiring a

finding that section 225 is unconstitutional. Our reasons

for upholding the constitutionality of the contested see-

tion are cited beiow.

[152 Cal.App.3d 264]

(5) The Supremacy clause of the United States Consti-

tution provides “This Constitution, and the Laws of the

United States which shall be made in Pursuance thereof

_.. Shall be the Supreme Law of the Land....” (U.S.

Const., art. VI, el. 2.) The laws of California, therefore,

must not conflict with either the commerce clause or the

import-export elause. However, “the constitution im-

poses no single formula on the States.” (Container Corp.

vy. Franchise Tax Bd. (1983) — U.S. —, —. [77 L.Ed.2d

545, 552, 193 S.Ct. 2933]) Regardless of whether the

3article I, section 10, clause 2 of the United States Constitution

precludes any state from laying “Imposts or Duties on Imports or

Exports... .”

C-6

validity of a state regulation is measured by the com-

merce clause or the import-export clause, the need for

uniformity in commercial relations with foreign goveri-

ments is well established. (Japan Line, Ltd. v. County of

Los Angeles (1979) 441 U.S. 434, 449 [60 L.Ed.2d 336,

348, 99 S.Ct. 1813]; Michelin Tire Corp. v. Wages (1976)

423 U.S. 276, 285 [46 L.Ed.2d 495, 503, 96 S.Ct. 535 ].)

When dealing with tax measures, however, the state is to

be afforded great latitude. (Haman v. County of Humboldt

(1973) 8 Cal.3d 922, 925 [106 Cal.Rptr. 617, 506 P.2d

993].) In certain instances, the state may favor a given

class. (Stebbins v. Riley (1925) 268 U.S. 137, 142 [69

L.Ed. 884, 888, 45 S.Ct. 424, 44 A.L.R. 1454] Haman v.

County of Humboldt, supra, 8 Cal.3d 922, 925.)

(3d) Were we to vitiate the exemption* provided by

section 225, “property manufactured or produced...

outside of the United States and brought into this state

for trans-shipment out of this state,” during the tax years

in question would be subject to ad valorem taxation.

However, “a state tax on the instrumentalities of foreign

commerce may impair federal uniformity in an area where

federal uniformity is essential.” (Japan Line, Ltd. v.

County of Los Angeles (1979) supra, 441 U.S. 434, 446-448

[60 L.Ed.2d 336, 347].) Were such taxation permissible,

one could well expect a proliferation of similar taxation

structures in each seaboard state. As a result, that uni-

formity of policy which is essential to foreign commerce

would be disturbed by multiple taxation. In the interests

of the uniformity in commercial relations with foreign

nations required by both the import-export clause and the

commerce clause, seaboard states must either be prohib-

‘The opinion expressed herein addresses only the propriety of the

exemption provided by section 225; we do not address the propriety

of the ad valorem tax itself.

C-7

ited from taxing imports and exports on the basis of their

place of origin or destination (Michelin Tire Corp. v.

Wages, supra, 423 U.S. 276, 285-286 [46 L.Ed.2d 495,

503]) or be required to provide an exemption from taxes

which would threaten that uniformity. The propriety of

providing an exemption from state taxation for goods

arriving from or destined for a port outside the United

States is, therefore, consistent with both the import-

export clause and the commerce ciause unless a finer

basis for invalidation exists.

(152 Cai.App.3d 265]

(6) In order to determine whether section 225 conflicts

with the commerce clause, we must consider whether

section 225 applies “to an activity with a susbstantial

nexus with [California], is fairly apportioned, does not

discriminate against interstate commerce, and is fairly

related to the services provided by the State.” (Complete

Auto Transit, Inc. v. Brady (1977) 430 U.S. 274, 279 [51

L.Ed. 2d 326, 331, 97 S.Ct. 1076].) In addition, because

section 225 entails commerce with foreign nations, we

must assess the risk of international multiple taxation

and the extent to which the Federal Government is

precluded from “speaking with one voice.” (Japan Line,

Ltd., supra, 441 U.S. 434, 451 [60 L.Ed.2d 336, 349].)

(3e) There can be no doubt, the exemption provided by

section 225 is tied “‘to an activity with a substantial nexus

with” California. Absent the exemption, California ports

stand to lose a large share of import and warehousing

business to other Pacifie Northwest or inland ports of

entry where the cost of labor, warehousing and taxation

may be lower. For the same reasons, the exemption is

clearly “related to [those] services provided by the

State” which pertain to the efficient operation of local

C-8

ports of entry, services which support the state’s legiti-

mate interest of encouraging commerce by levying taxes

and creating exemptions thereto. (See Boston Stock Ex-

change v. State Tax Comm’n (1977) 429 U.S. 318 [50

L.Ed.2d 514, 97 S.Ct. 599].) (7) Such interests may

justify taxation measures and exemptions thereto, for “a

statute which encourages the location within the State of

needed and useful industries by exempting them, though

not also others, from its taxes is not arbitrary....”

(Allied Stores of Ohio v. Bowers (1959) 358 U.S. 522, 528

[3 L.Ed.2d 480, 485, 79 S.Ct. 437].)

(3d) Moreover, the validity of section 225 does not

entail an issue of questionable apportionment, i.e., an

inquiry into whether the effect of a tax is reasonably and

fairly related to the presence of a commercial activity

within the state. (Memphis Gas Co. v. Stone (1948) 335

U.S. 80 (92 L.Ed. 1832, S.Ct. 1475].) As we are not

assessing whether the extent of a commercial burden is

reasonably related to the presence of a business interest

in California, we need inquire no further into apportion-

ment of a burden.

In addition, we find no evidence that section 225 dis-

eriminates against interstate commerce. (8) It is well

established that the commerce clause does not preclude

all state regulation; areas of commercial regulation not

preempted by the federal government may be amenable to

regulation by the state. (Cooley v. Board of Wardens

(1852) 53 U.S. (12 How.) 299, 319 [13 L.Ed. 996, 1004].)

(5b) In order to determine whether a tax is diserimi-

natory, it is necessary to examine the entire tax structure

of the state. (Washington v. United

C-9

[152 Cal.App.3d 266]

States (1983) — U.S. [75 L.Ed.2d 264, 103 S.Ct.

1344]; Phillips Co. v. Dumas School Dist. (1960) 361 U.S.

376, 383 [4 L.Ed.2d 384, 389, 80 S.Ct. 474].) In the

absence of congressional action, only the “clearest consti-

tutional mandate justifies the denial of a state’s taxing

power. (Washington v. United States, supra, U.S.

____, quoting from Michelin Tire Corp. v. Wages, supra,

423 U.S. 276, 293 [46 L.Ed.2d 495, 507-508].) Whether a

tax is impermissibly discriminatory depends upon the

economic burden which results therefrom. (Washington v.

United States, supra, U.S. .)

(3e) The practical effect of the contested section is to

encourage the use of California’s ports by California and

non-California based manufacturers and producers who

import foreign goods through California ports for trans-

shipment to other states or who export goods manufac-

tured or produced in other states through California to

ports outside the United States. It is essential to note

that the ineligibility applies equally to California and non-

California business entities. Thus, the only producer or

manufacturer who is ineligible for the exemption is a

producer or manufacturer using California ports for ship-

ment of goods produced or manufactured in California to

foreign countries or for receipt of goods from foreign

countries for use in California operations. The California

business, however, which imports goods from foreign

countries for trans-shipment to other states or who ex-

ports goods manufactured in other states through Califor-

nia ports is entitled to the exemption just as is an out-of-

state business engaged in the same trade.

Thus, section 225 clearly does not “prohibit the flow in

interstate goods, place added costs upon them, or distin-

C-10

guish between in-state and out-of-state companies in the

retail market.” (Ezzon Corp. v. Governor of Maryland

(1978) 437 U.S. 117, 126 (57 L.Ed.2d 91, 100, 98 S.Ct.

2207].) In the absence of any of these factors, we find

section 225 provides no advantage to local business; thus,

we do not find the discriminatory effect which would

constitute a violation\ of the commerce clause. (Jbid.;

Maryland v. Louisiana (1981) 451 U.S. 725 [68 L.Ed.2d

576, 101 S.Ct. 2114].) This is not an instance where “‘the

effect of a state regulation is to cause local goods to

constitute a larger share, and goods with an out-of-state

source to constitute a smaller share, of the total sales in

the market....” (Exxon Corp. v. Governor of Maryland,

supra, 437 U.S. 117, 126, fn. 16 [57 L.Ed.2d 91, 100].)

As section 225 provides an exemption from tax rather

than the imposition of such a burden, the risk of interna-

tional multiple taxation is nonexistent. Moreover, as

noted ante, the exemption does not interfere with the

federal government’s “one voice” regulating our nation’s

foreign affairs. (Japan

[152 Cal.App.3d 267]

Line, Ltd, supra, 441 U.S. 484, 451 [60 L.Ed.2d 336,

349].) Federal uniformity is not impaired.

In view of the above, we hold section 225 is both

consistent with the federal import-export clause and

nonviolative of the federal commerce clause. Plaintiff is

entitled to the relief sought.

The judgment is reversed.

Lillie, J., and Hubbell, J.,* coneurred.

*Assigned by the Chairperson of the Judicial Council.

D-1

APPENDIX D

STAR-KIST FOODS, INC.

CORPORATE ORGANIZATION

June 30, 1986

(Revised July 15, 1986)

H. J. Heinz Company

(Pennsylvania)

Star-Kist Foods, Inc.

(California — 100%)

Star-Kist Caribe, Ine.

(Delaware — 100% — Sec. 936)

Canning tuna; investments; holding eempany

Alpha Fishing Company, Ine.

(Puerto Rico — 51%)

Tuna fishing company M/V “Mary S” adjudicated

to bank; subsequently sold May, 1985

Gamma Fishing Company, ince.

{Puerto Rico — 50%)

Tuna fishing company M/V “Venturous”,

declared bankruptcy April, 1985

Livno Fishing Company, Inc.

(Cayman Islands — 100%)

Tuna fishing company owns 20%

M/V “Adriatie Sea” (See Zadar below)

Mayaguez Water Treatment Co., Ine.

(Puerto Rico — 50%)

Receiving, treating and discharging

waste water

Productos Alimenticios Del Mar,

S. A. (Mexico — 15%) PALMAR

Tuna fishing company, M/V “Azteca I”,

M/V “Azteca II’, M/V “Azteea III”

Star-Kist Reunion, Ine.

(Delaware — 100%)

Fish buying station and cold storage

operation in Indian Ocean

Zadar Fishing Company Ltd.

(Cayman Islands — 22.81%)

Tuna fishing company. Owns 80%

M/V “Adriatie Sea” (See Livno above}

Zagreb Fishing Company Ltd.

(Cayman Islands — 38.25%)

Tuna fishing company M/V “Don Juan Zee”

Star-Kist International, S. A.

(Panama — 100%)

Ghana freezer base; joint venture shipping

China Marine Overseas, S. A.

(Panama — 33%%) CMO

Liquidation/ Dissolution in Process

Inactive company

Compania Pesquera Estrella del Peru, S. A.

(Peru — 2.10%) COPES

Cannery freezer plant; fishing vessels (see

page 3 for percent owned directly by SKF)

Ghana Tuna Fishing Development Co. Ltd

(Ghana — 33%%)

Tuna fishing; vessels “Mary Radine”, “Nick T”,

“Fernanda Marisa”, “Big John’, ““Kawamina Nortey”

“Nii Anumla”

International Tuna Sales Company, S. A.

(Panama — 100%) ITSACO

Fish broker (inactive)

Pioneer Food Cannery Limited

(Ghana — 50%)

Tuna cannery in Ghana

Pioneer Tuna Fishing Co. Ltd.

(Ghana — 50%)

Tuna fishing company, including sale and export

of raw fish M/V’s “Baeg du San” #6, #7, #8, #9

D-3

Refrigerated Express Service Ltd.

(Bahamas — 51%)

Formerly owned refrigerated reefer vessels “Fortuna

Reefer” and “Reefer Carrier’. Now enters into time

charters.

Calafia Shipping Company Ltd.

(Bahamas — 50%)

Owns stock interests in United Reefers Inc. and two Duteh

reefer vessel owning companies.

United Reefers, Inc.

(Netherlands Antilles — 124%)

Charters Dutch reefers vessels.

Zeerederij Holland Brabant B.V.

(Netherlands — 50%)

M/V “Maya”

Zeerederij Holland Zeeland B.V.

(Netherlands — 50%)

M/V “Calafia”

Tri-Arrow Transportation Company, Ltd.

(Bahamas — 16.7%)

Inactive; formerly owned refrigerated reefer vessel

“Fortuna Carrier” Sold for serap.

Star-Kist Asia, Ltd.

(Delaware — 100%)

Trading in raw sea food products out of Tokyo office

Star-Kist Overseas, Inc.

(Delaware — 100%)

Foreign branch operations of Star-Kist Foods, Ine.,

primarily in Peru and New Zealand

Estremar del Peru, S.A.

(Peru — 100%)

Sale and distribution of fish products. Enter into

trademark licensing agreements

Star-Kist Overseas:

Peru Branch

Joint operation with Government of Peru

D-4

Star-Kist Samoa, Ince.

(California — 100% — See. 936)

Tuna Cannery; can manufacturer

Fishermans Club of Samoa, Inc.

(Delaware — 50%)

Recreational facility for Oriental fishermen in Samoa

Marine Containerships Limited

(Liberia — 50%)

Joint shipping venture; owns 51% of M/V “Polynesia”

Ace Fisheries Company Inc.

(Puerto Rico — 100%)

Cash assets from sale of M/V “Royal Pacific’ and M/V

“Michelangelo”

Albacora Sociedad Anonima

(Costa Rica — 100%)

Inactive company

Aleta Amarilla Sociedad Anonima

(Costa Rica — 100%)

Inactive company

Anthony-Christina, Ine.

(Delaware — 100%)

Tuna fishing company. Formerly held 20% limited partner-

ship interests in M/V “Christina C” and M/V “Conqueror”

both of which have been sold at foreclosure

,

Brighton Fishing Company, Ine.

(Delaware — 100%)

Holds 20% general partnership interest in M/V “Capt. M. J.

Souza” and 49% stock interest in La Estrella Atunera del

Orinoco, S. A. (LEDOSA)

La Estrella del Orinoeo, S.A. (LEDOSA)

(Venezuela — 49%)

Charters vessels to fish under Venezula laws (M/V

“Caroni” ex. Capt. Frank Medina, M/V “Apure”, ex Carolyn

M., M/V “Manzanares”, ex. Seawolf.)

Canner’s Steam Company Incorporated

(California — 20% voting stock; 33.5% non-voting)

Provides steam for cannery operations at T. I.

D-5

C & F Fishing Ltd.

(California — 25%)

Tuna fishing company M/V “Jeanette Diana”

Compania Pesquera Estrella del Peru, S.A.

(Peru — 46.90%) COPES

Cannery freezer plant; fishing vessels (see page 1 for addi-

tional percentage owned directly by SKI)

Compagnie Bretonne de Cargos Frigorifiques

(Franee — 21.5%) COBRECAF

Diversified tuna fishing and refrigerated freight company

Connie Jean, Inc.

(Washington —- 100%)

Tuna fishing company. M/V “Connie Jean” sold in 1984

Delta Fishing Company, Ince.

(Puerto Rico — 38.25%)

Tuna fishing company. M/V “Priscilla M”

Don Juan Fishing Company, Ine.

Puertc Rico (Puerto Rico — 38.25%)

Tuna fishing company. Formerly owned M/V “Don Juan”

(see page 1 — Zagreb)

Eastern Pacific Fishing Company, Inc.

(Delaware — 100%)

Tuna fishing company. M/V “Eastern Pacific” sold in 1985

Under installment sale

Eastern Pacifie Ltd.

(Cayman Islands — 100%)

Tuna fishing company. Formerly owned M/V “Eastern

t Pacific’ (see above)

Entrepots et Transports

Figorifiques Polynesiens

(Tahiti — .8%)

Liquidation/Dissolution in Process. Cold storage plant in

Tahiti

Epsilon Fishing Company, Ine.

(Puerto Rico — 38.25%)

Tuna fishing company. M/V “Danica”

D-6

Eta Fishing Company, Inc.

(Puerto Rico — 38.25%)

Tuna fishing company. M/V “Kali”

Claudia B Fishing Company. Ine.

(Delaware — 50%)

Tuna fishing company M/V “Claudia B”

Fast Overseas Services, Ine.

(Delaware — 100%)

Domestic purchasing agent; overseas packer/exporter,;

agent — Canadian pet food sales

Frances Ann-Liberator, Ine.

(Delaware — 100%)

Tuna fishing company. Holds 19% limited partnership in

Sea Wolf Partnership, Ltd.

Frontier Fishing Corporation

(California — 20%)

Tuna fishing company. M/V “Neveri” (ex-M/V “Frontier”)

Holdinmex, S. A. de C. V.

(Mexico — % equal to 4 shs. stock)

Holding company in Mexico for H. J. Heinz Company

Interamericana de Alimentos Ltda.

(Brazil — 100%) INTERAL

Industrialize, market, import and export food products in

Brazil

Interocean Equipment Corporation

(California — 50%)

Owns and leases dry cargo and refrigerated shipping

containers to M/V “Polynesia” (See: SKI-Marine

Containerships Limited)

Koram Fisheries, S. A.

(Panama — 30%)

Owns and operates fishing vessels in the Pacific and

Atlantic Oceans

L. A. Fishing Company, Ine.

(Nevada — 100%)

Tuna fishing company. Owns 51% general partnership inter-

est in M/V “Laura Ann™

D-7

Las Perlas Fishing Corporation

(Panama — 20%)

Inactive tuna fishing company

Liberty King, Ine.

(Delaware — 50%)

Tuna fishing company. M/V “Chery! Marie”

Liberty Prince, Ine.

(Delaware — 100%)

Owns 20% shareholder interests in

Nicole K Ltd. and Pacifico Fishing Ltd.

Mary Lyn Fishing Company, Ine.

(Puerto Rico — 100%)

Inactive tuna fishing company.

M/V “Mary Lyn” sold at auction.

Nicole K Fishing, Inc.

(Puerto Rico — 20%)

Inactive fishing company. Formerly

owned M/V “Nicole K”™ sold at auction

Manko Star International Trading

Company, 8S. A. (Panama — 50%)

Inactive company

Marine Trading Pacific, Ine.

(Delaware — 100%)

Fishing activities and vessel support in the Orient

Marven, Inc.

(Puerto Rico — 100%)

Fuel Supplier. (SKF v.Viguie —

court adjudicated 100% stock and assets

to SKF)

May Queen, Ine.

(Delaware — 100%)

Tuna fishing company. Owns 17.5/25ths

undivided interest in M/V “Sea Hawk”;

20% limited partnership interest in M/V

“Captain Frank Medina”; 19% in

M/V “Carolyn M”

D-8

Mermaid-Southern, Ine.

(Deiaware — 100%)

Tuna fishing company. Owns 20% limited

partnership interest in M/V “Conquistador”

which is now under Chapter 11 proceedings.

Michelangelo Fishing Company, Inc.

(Delaware — 100%)

Tuna fishing company. Holds 20%

interest in M/V “Tifaimoana”™ which is tied-up

in foreclosure proceedings

Montana Fishing Corporation

(California — 100%)

Tuna fishing company.

M/V “Arauea”™ (ex-M/V “Montana” )

New Era, Ine.

(Delaware — 100%)

Tuna fishing company. Owns 40%

limited partnership interest in

M/V “Pacifie Princess”

Pacific Forwarding Enterprises S.A.

(Panama — 100%) PACFORE

Joint shipping venture; freight wharfage.

Pacific King, Ine.

(Delaware -— 50%)

Tuna fishing company.

M/V “Mary Antoinette”

Pacific Prince, Ine.

(Delaware — 100%)

Tuna fishing company. Formerly owned

M/V “Guanipa”™ (ex-M/V “Kerri M”)

Pantry Pride, Ine.

(Delaware — % equal to 2452 Shs. Stock)

Supermarket chain; stock received in Chapter 11

proceedings. Stock being sold.

Pisces Fishing Company, Inc.

(Delaware — 51%)

Tuna fishing company. M/V “Pisces”

D-9

Proyectos Empresariales Submarinos

Centro America Sociedad Anonima

(Costa Rica — 100%)

Inactive company

Raffaello Fishing Company, Inc.

(Delaware — 50%)

Tuna fishing company. M/V “Raffaello”

Royal F

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