# Amicus Curiae Brief — American Trucking Assns., Inc. v. Smith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0247%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 167 ## Text No. 88-192 and Now. 88-325 IN THE Supreme Court of the United States OCTOBER TERM, 1988 MCKESSON CORPORATION, Petitioner, Vv. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, and the OFFICE OF THE COMPTROLLER, STATE OF FLORIDA, Respondents. AMERICAN TRUCKING ASSOCIATIONS, INC., et al., Petitioners, Vv. MAURICE SMITH, DIRECTOR, ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT, et al., Respondents. On Writs of Certiorari to the Supreme Court of Florida and the Supreme Court of Arkansas MOTION FOR LEAVE TOC FILE BRIEF AMICUS CURIAE AND BRIEF OF TAX EXECUTIVES INSTITUTE, INC. AS AMICUS CURIAE IN SUPPORT OF PETITIONERS TIMOTHY J. MCCORMALLY TAX EXECUTIVES INSTITUTE, INC. 1001 Pennsylvania Avenue, N.W. Suite 320 Washington, D.C. 20004-2505 (202) 638-5601 Counsel for Amicus Curiae Tax Executives Institute, Inc. I a a TG SS I SP PG STIS TTT WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 | IN THE Supreme Court of the United States OCTOBER TERM, 1988 | No. 88-192 and No. 88-325 McKESSON CORPORATION, Petitioner, Vv. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, and the OFFICE OF THE COMPTROLLER, STATE OF FLORIDA, Respondents. AMERICAN TRUCKING ASSOCIATIONS, INC., et al., Petitioners, Vv. MAURICE SMITH, DIRECTOR, ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT, et al., Respondents. On Writs of Certiorari to the Supreme Court of Florida and the Supreme Court of Arkansas MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE ON BEHALF OF TAX EXECUTIVES INSTITUTE, INC. IN SUPPORT OF PETITIONERS To the Honorable Chief Justice of the United States and the Associate Justices of the Supreme Court of the United States: Pursuant to Rule 36 of the Rules of this Court, Tax Executives Institute, Inc. respectfully moves the Court for leave to file the accompanying brief in support of Petitioners in this case as amicus curiae. Tax Executives Institute has requested the written consent of all parties to the filing of the accompanying brief. Petitioners and Respondents Division of Alcoholic Beverages, et al., have consented to the filing of the brief, but the written con- sent of Respondents Maurice Smith, et a/., has not been received.* 1. Tax Executives Institute, Inc. is a voluntary, non- profit association of corporate and other business execu- tives, managers, and administrators who are responsible for the tax affairs of their employers. The Institute was organized in 1944 and currently has approximately 4,300 members who represent more than 2,000 of the leading corporations in the United States and Canada. The mem- . bers of the Institute represent a cross-section of the business community in North America, and the companies represented by the Institute’s membership are, almost without exception, engaged in interstate commerce. The Institute is dedicated to promoting the uniform and equi- table enforcement of the tax laws throughout the nation and to reducing the costs and burdens of administration and compliance to the benefit of both the government and taxpayers. 2. a. This case addresses the extent to which States may effectively attenuate decisions by this Court that * The consents of Petitioners and of Respondents Division of Alcoholic Beverages, et al., have been filed with the Clerk of the Court. Respondents Maurice Smith, et al., have neither denied nor granted Tax Executives Institute’s request for written consent. If such consent is subsequently received, it shali promptly be filed with the Clerk of the Court. state tax statutes unconstitutionally infringe upon inter- state commerce by applying those decisions on a prospective-only basis. Nearly five years ago, in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984), the Court invalidated a Hawaii statute under which local products were exempt from the alcoholic beverage tax as repug- nant to the Constitution’s Commerce Clause. See U/S. Const. art. I, § 8, cl. 3. Earlier this year, the Supreme Court of Florida considered the constitutionality of a substantially similar Florida statute; although ruling on the basis of Bacchus that the Florida law violated the Commerce Clause, the Florida court concluded—without even citing the Court’s seminal decision in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)—that its finding of unconstitutionality should apply on a_ prospective-only basis. Division of Alcoholic Beverages and Tobacco v. McKesson Corp., 524 So.2d 1000 (Fla. 1988), reprinted in Appendix B to McKesson Corporation’s Petition for a Writ of Certiorari (McKesson App. B). b. Similarly, two terms ago, the Court in American Trucking Associations, Inc. v. Scheiner, 107 S. Ct. 2829 (1987), ruled that the Commerce Clause was violated © by two Pennsylvania statutes that imposed lump-sum annual taxes on the operation of trucks on Pennsylvania highways. Three days later, a pending case involving a similar Arkansas statute was remanded to the Supreme Court of Arkansas for further consideration in light of that case. American Trucking Associations, Inc. v. Gray, 107 S. Ct. 3252 (1987). On March 22, 1988, the Arkan- sas court held that the Arkansas statute offended the Commerce Clause. The court, however, construed Chev- ron not to mandate the retroactive application of its deci- sion. American Trucking Associations, Inc. v. Gray, 295 Ark. 43, 746 S.W.2d 377 (1988), reprinted in Appendix A to the American Trucking Associations’ Petition for a Writ of Certiorari (ATA App. A). The court not only concluded that no refund need be made of taxes collected under the unconstitutional statute before this Court’s de- cision in Scheiner but further held that taxes collected after the decision—up until the time an escrow was im- posed on the State by Justice Blackmun, 108 S. Ct. 2 (1987)—could be retained by the State. ATA App. A at 5a. 3. a. Tax Executives Institute’s members have a vital interest in the resolution of the prospective-only issue raised by the McKesson and American Trucking Associa- tions (ATA) cases. This Court’s resolution of these cases will affect far more than the State of Florida’s and the State of Arkansas’s ability to retain the unconstitutional taxes they have collected from particular taxpayers. The Institute is concerned that the decisions of the Florida and Arkansas courts, if not reversed, could substantially dilute the protection intended by the Commerce Clause. Should the Court affirm either decision, courts and legis- latures in other States may well conclude that the Con- stitution does not bar either the enactment of tax statutes that discriminate against interstate commerce or even the collection of discriminatory taxes pendente lite, but rather only the continued collection of discriminatory taxes after the unconstitutionality of the particular stat- utes is explicitly confirmed by the Court. Indeed, a dis- turbing trend in that direction can already be discerned —see, e.g., Ashland Oil, Ine. v. Rose, 350 S.E.2d 531 (W. Va. 1986), appeal dismissed for want of final _judg- ment, 107 S. Ct. 1949 (1987) (remand pending) (the Court’s decision in Armco Inc. v. Hardesty, 467 U.S. 638 (1984), should be applied only to Armco); National Can Corp. v. Department of Revenue, 109 Wash.2d 878, 749 P.2d 1286 (1988), appeal dismissed and cert. denied, 108 S. Ct. 2030 (1988) (the Court’s finding of unconstitu- tionality in Tyler Pipe Industries, Inc. v. Washington Department of Revenue, 107 S. Ct. 2810 (1987), will be applied on a prospective-only basis). Obversely, if the Court reverses the Florida and Arkansas decisions, the right of all taxpayers to be free from taxes that -impose undue burdens on interstate commerce will be vindicated and the Commerce Clause itself will be vivified. b. The members of the Institute and their employers would bear the additional and discriminatory costs that could result from the States’ continued misapplication (or nonapplication) of the Chevron standard. Because they would consequently suffer the “unreasonable clog upon the mobility of commerce,” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935), that could result from the Florida and Arkansas decisions, the Institute has a special and direct interest in the outcome of this case. WHEREFORE, it is respectfully requested that Tax Executives Institute’s motion for leave to file the ac- companying brief amicus curiae in support of the Peti- tioners in the case be granted. Respectfully submitted, TIMOTHY J. MCCORMALLY TAX EXECUTIVES INSTITUTE, INC. 1001 Pennsylvania Avenue, N.W. Suite 320 Washington, D.C. 20004-2505 (202) 638-5601 Counsel for Amicus Curiae Tax Executives Institute, Inc. Date: January 6, 1989 TABLE OF CONTENTS Page 21 ii TABLE OF AUTHORITIES CASES: Page Aero Mayflower Transit Co. v. Board of Railroad Commissioners, 332 U.S. 495 (1947) -.................- 13 Aero Mayflower Co. v. Georgia Public Service Com- mission, 295 U.S. 285 (1935) .....................--2------+- 13 American Trucking Association v. Kline, No. 07- 17-1667-85MVT (N.J. Tax Ct. Sept. 8, 1988) -..... 13, 18 American Trucking Associations, Inc. v. Conway, [Vt.] State Tax Rptr. (CCH) ‘£ 200-306 (No. S-147-86WnC) (Vt. Super. Ct., Washington Co., PIII scintsecsioceresresennssennstenesevniviniiehianiienitiapenseinssnadseniens 18-19 American Trucking Associations, Inc. v. Goldstein, 312 Md. 583, 541 A.2d 955 (1988) -.................... 18 American Trucking Associations, Inc. v. Gray, 108 S. Ct. 2 (1987) (Blackmun, Circuit Justice) -.... 3,8 American Trucking Associations, Inc. v. Gray, 107 A, GR, Be IIIT -cccsdisasncsmaiimendéunsiadeiscimedanigienioeennete 3 American Trucking Associations, Inc. v. Gray, 288 Ark. 488, 707 S.W.2d 759 (1986), vacated and remanded, 107 S. Ct. 3252 (1987) ......................... 7 American Trucking Associations, Inc. v. Scheiner, a ee a Ne cirttieinemnnennnnss passim Armco Inc. v. Hardesty, 467 U.S. 638 (1984) -...... 4,11,18 Ashland Oil, Inc. v. Rose, 350 S.E.2d 531 (W. Va. 1986), appeal dismissed for want of final judg- ment, 107 S. Ct. 1949 (1987) (remand pending).. 4, 18 Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 ca a ae passim Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 II c.ciiaitas dat anatsie sinlaaiictasinainseniiagsunnelenientmnnndibediantaniin 4 Boston Stock Exchange v. State Tax Commission, I a 11 Chapman v. California, 386 U.S. 18 (1967) ........... 12 Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) passim Cipriano v. City of Houma, 395 U.S. 701 (1969) .... 16 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 cl a a ae 8,13 ili TABLE OF AUTHORITIES—Continued Page EEOC v. Vucitech, 842 F.2d 936 (7th Cir. 1988) _.. 9 Griffith v. Kentucky, 479 U.S. 314 (1987)... 5, 10, 20, 21 Hunt v. Washington State Apple Advertising Com- mission, 482 U.S. 333 (1977) ...................-.------------ 5, 6, 11 Lemon v. Kurtzman, 403 U.S. 602 (1971) .............. 16 Lemon v. Kurtzman, 411 U.S. 192 (1973) .............. 15 Lewis v. BT Investment Managers, Inc., 447 U.S. a cite 6 Linkletter v. Walker, 381 U.S. 618 (1965) —........... 9 Los Angeles Department of Water and Power v. Manhart, 422 U.S. 702 (1978) ..................------------ 16 Maryland v. Louisiana, 451 U.S. 725 (1981) ........ 11 Metropolitan Life Insurance Co. v. Commissioner of Insurance, 373 N.W.2d 399 (N.D. 1985) _....... 18 Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985) . = 6, 18 National Can Corp. v. ». Department of Revenue, 109 Wash.2d 878, 749 P.2d 1286 (1988), appeal dis- missed and cert. denied, 108 S. Ct. 2030 (1988) 4, 13, 18 Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) ............- 16 Norton v. Shelby County, 118 U.S. 425 (1886) ...... 9 Penn Mutual Life Insurance Co. v. Department of Licensing and Regulation, 162 Mich. App. 123, 412 N.W.2d 668 (1987) —........ iaiataishivcesdiimaiaipeasiities 18 Philadelphia v. New Jersey, 437 U.S. 617 (1978)... 5 Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969) . ee 10 Saint Francis College v. . Al-Khazraji, 107 ‘Ss. Ct. 2022 (1987) ........... sociciiebicatlaenedmbte tence ad iii 9 Solem v. Stumes, 165 U.S. 638 (1981) _ : 9 Tyler Pipe Industries, Inc. v. Washington Depart- ment of Revenue, sag Ct. 2810 (1987)... 4, 11, 13, 18 United States v. Johnson, 457 U.S. 537 (1982) et 11, 20 United States v. The pat Peggy, 5 US. 1 Cranch) 103 (1801). “ 9 Westinghouse rlectric Corp. * v. . Tully, 166 U. Ss. 388 (1981) cee ae PASTA: oot MAL YUP 11 iv FEDERAL CONSTITUTIONAL PROVISIONS: Page UB. Comat, ant. 1, 8 B, Cb. B 2nnnnnacnncnnnnncccnssccsccceccccceceees 2 MISCELLANEOUS: 1 W. Blackstone, Commentaries ............-------------------- 9 L. Tribe, American Constitutional Law (2d ed. I icisicdceccsicnnsccnsscnencnnrctntensnisiaiinananssansnnenemssinesittn 9, 20 Tatarowicz, Right to a Refund for Unconstitu- tionally Discriminatory Taxes and Other Con- troversial State Tax Issues under the Commerce Clause, 41 Tax Lawyer 103 (1987) ...... 10, 13-14, 17, 18 IN THE Supreme Court of the United States OCTOBER TERM, 1988 No. 88-192 and No. 88-325 MCKESSON CORPORATION, Petitioner, Vv. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, and the OFFICE OF THE COMPTROLLER, STATE OF FLORIDA, Respondents. AMERICAN TRUCKING ASSOCIATIONS, INC., et a/., Petitioners, v. MAURICE SMITH, DIRECTOR, ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT, et a/., Respondents. On Writs of Certiorari to the Supreme Court of Florida and the Supreme Court of Arkansas BRIEF OF TAX EXECUTIVES INSTITUTE, INC. AS AMICUS CURIAE IN SUPPORT OF PETITIONERS 2 INTEREST OF AMICUS CURIAE Pursuant to Rule 36 of the Rules of this Court, Tax Executives Institute, Inc. respectfully submits this brief as amicus curiae in support of Petitioners. Tax Execu- tives Institute, Inc. is a voluntary, nonprofit association of corporate and other business executives, managers, and administrators who are responsible for the tax af- fairs of their employers. The Institute was organized in 1944 and currently has approximately 4,300 members who represent more than 2,000 of the leading corpora- tions in the United States and Canada. The members of the Institute represent a cross-section of the business community in North America, and the companies rep- resented by the Institute’s membership are, almost with- out exception, engaged in interstate commerce. The In- stitute is dedicated to promoting the uniform and equi- table enforcement of the tax laws throughout the nation and to reducing the costs and burdens of administration and compliance to the benefit of both the government and taxpayers. SUMMARY OF ARGUMENT This case addresses the extent to which States may effectively attenuate decisions by this Court that state tax statutes unconstitutionally infringe upon interstate commerce by applying those decisions on a prospective- only basis. Nearly five years ago, in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984), the Court invalidated a Hawaii statute under which local products were ex- empt from the alcoholic beverage tax as repugnant to the Constitution’s Commerce Clause. See U.S. Const. art. I, $8, cl. 3. Earlier this year, the Supreme Court of Florida considered the constitutionality of a substan- tially similar Florida statute; although ruling on the basis of Bacchus that the Florida law violated the Com- merce Clause, the Florida court concluded—without even citing the Court’s seminal decision in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)—that its finding of uncon- 3 stitutionality should apply on a prospective-only basis. Division of Alcoholic Beverages and Tobacco v. McKesson Corp., 524 So.2d 1000 (Fla. 1988), reprinted in Appendix B to McKesson Corporation’s Petition for a Writ of Cer- tiorari (McKesson App. B). Similarly, two terms ago, the Court in American Truck- ing Associations, Inc. v. Scheiner, 107 8S. Ct. 2829 (1987), ruled that the Commerce Clause was violated by two Pennsylvania statutes that imposed lump-sum annual taxes on the operation of trucks on Pennsylvania high- ways. Three days later, a pending case involving a simi- lar Arkansas statute was remanded to the Supreme Court of Arkansas for further consideration in light of that case. American Trucking Associations, Inc. v. Gray, 107 S. Ct. 3252 (1987). On March 22, 1988, the Arkansas court held that the Arkansas statute offended the Com- merce Clause. The court, however, construed Chevron not to mandate the retroactive application of its decision. American Trucking Associations, Inc. v. Gray, 295 Ark. 43, 746 S.W.2d 377 (1988), reprinted in Appendix A to the American Trucking Associations’ Petition for a Writ of Certiorari (ATA App. A). The court not only con- cluded that no refund need be made of taxes collected under the unconstitutional statute before this Court’s decision in Scheiner but further held that taxes collected after the decision—up until the time an escrow was imposed on the State by Justice Blackmun, 108 S. Ct. 2 (1987)—could be retained by the State. ATA App. A at 5a. Tax Executives Institute’s members have a vital inter- est in the resolution of the prospective-only issue raised by the McKesson and American Trucking Associations (ATA) cases. The Court’s resolution of these cases will affect far more than the State of Florida’s and the State of Arkansas’s ability to retain the unconstitutional taxes they have collected from particular taxpayers. The In- stitute is concerned that the decisions of the Florida and 4 Arkansas courts, if not reversed, could substantially di- lute the protection intended by the Commerce Clause. Should the Court affirm either decision, courts and legis- latures in other States might well conclude that the Con- stitution does not bar either the enactment of tax stat- utes that discriminate against interstate commerce or even the collection of discriminatory taxes pendente lite, but rather only the continued collection of discriminatory taxes after the unconstitutionality of the particular stat- utes is explicitly confirmed by the Court. Indeed, a dis- turbing trend in that direction can already be discerned —see, e.g., Ashland Oil, Inc. v. Rose, 350 S.E.2d 531 (W. Va. 1986), appeal dismissed for want of final judg- ment, 107 S. Ct. 1949 (1987) (remand pending) (the Court’s decision in Armco Inc. v. Hardesty, 467 U.S. 638 (1984), should be applied only to Armco) ; National Can Corp. v. Department of Revenue, 109 Wash.2d 878, 749 P.2d 1286 (1988), appeal dismissed and cert. denied, 108 S. Ct. 2030 (1988) (the Court’s finding of unconstitu- tionality in Tyler Pipe Industries, Inc. v. Washington Department of Revenue, 107 S. Ct. 2810 (1987), will be applied on a prospective-only basis). Obversely, if the Court reverses the Florida and Arkansas decisions, the right of all taxpayers to be free from taxes that impose undue burdens on interstate commerce wil! be vindicated and the Commerce Clause itself will be vivified. The members of the Institute and their employers would bear the additional and discriminatory costs that could result from the States’ continued misapplication (or nonapplication) of the Chevron standard. Because they would consequently suffer the “unreasonable clog upon the mobility of commerce,” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935), that could re- sult from the Florida and Arkansas decisions, Amicus Tax Executives Institute has a special and direct interest in the outcome of this case. The Institute respectfully submits that, in light of the States’ repeated misapplica- tion of the Chevron standard, it may be appropriate for 5 the Court not only to clarify and thereby vivify that standard, but to give consideration to the adoption of a new standard in respect of state tax statutes found to violate the Commerce Clause. See Griffith v. Kentucky, 479 U.S. 314 (1987). ARGUMENT 1. A. McKesson: The Florida Statute The constitutional fate of the State of Florida’s alcohol beverage law was effectively sealed by the Court’s 1984 decision in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984). In that case, the Court addressed whether the State of Hawaii’s exemption from the liquor excise tax for local products contravened the Constitution’s Com- merce Clause. Observing that the presence of either a discriminatory purpose, citing Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 352-53 (1977), or a discriminatory effect, citing Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978), justified a finding of proscribed “economic protectionism,” 468 U.S. at 270, the Court concluded that the Hawaii statute vio- lated the Commerce Clause “because it had both the pur- pose and effect of discriminating in favor of local prod- ucts.” 468 U.S. at 273 (footnote omitted). In response to the Court’s decision in Bacchus, the Florida legislature held hearings to consider possible amendments to a Florida statute that was substantially similar to that struck down in Bacchus. The legislature removed the word “Florida” from the statute and, in its place, enacted language that, among other things, granted exemptions or tax preferences to wines and distilled spirits manufactured from citrus, sugar cane, and cer- tain grape species, all of which were grown in Florida. The petitioner in No. 88-192, McKesson Corporation, challenged the validity of the revised statute, arguing that it effected the same proscribed, discriminatory re- 6 sult as its predecessor.' The Supreme Court of Florida agreed that the tax scheme placed “a clear discriminatory burden on interstate commerce.” McKesson App. B at lla. The Florida court reasoned that the State’s inter- est in promoting alcoholic beverages made with Florida products was fundamentally at odds with the “general principle that the Commerce Clause prohibits a State from using its regulatory power to protect its own citi- zens from outside competition.” McKesson App. B at 18a, citing Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 44 (1980) 2 Notwithstanding its conclusion that the Florida statute was unconstitutional (citing both Bacchus and Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977)), the Florida court held that its ruling should not be given retroactive effect. In reaching this result, the court made no reference to this Court’s de- cision in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), in which the governing standards for gauging the retro- activity of judicial decisions in civil cases were articu- lated. Rather, the court simply stated: We agree with the DABT [Department of Alcoholic Beverages and Tobacco] that the prospective nature of the rulings below was proper in light of the equi- table considerations present in this case. See Gule- sian v. Dade County School Board 281 So.2d 325 ‘One sponsor of the revised Florida statute explained to the legislative committee that the changes were designed “simply to retain what we have done for the last twenty years.” McKesson Corporation's Petition for a Writ of Certiorari at 2 2 The court quoted the following from Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985): “[{I}n Bacchus, although we ob- served as a general matter that ‘a State may enact laws pursuant to its police powers that have the purpose and effect of encouraging domestic industry,’ we held that in doing so, a State may not con- stitutionally impose a discriminatory burden upon the business of other States, merely to protect and promote local business.” 470 U.S. at 877 n.6 (citations omitted), quoted at McKesson App. B at 18a-19a. 7 (Fla. 1973); Lemon v. Kurtzman, 411 U.S. 192 (1973). Not only was the tax preference scheme im- plemented by the DABT in good faith reliance on a presumptively valid statute, ... [but] if given a refund, cross-appellants would in all probability re- ceive a windfall, since the cost of the tax has been passed on to their customers. McKesson App. B at 21a. B. ATA: The Arkansas Statute From the time of its enactment in 1983, the State of Arkansas’ Highway Use Equalization (HUE) Tax was the subject of constitutional attack.* Even before the tax went into effect, the petitioners in No. 88-325 brought suit challenging its constitutionality under the Commerce Clause. During the pendency of that litigation, this Court ruled that a substantially similar Pennsylvania tax discriminated unreasonably against interstate com- merce and was therefore unconstitutional. American Trucking Associations, Ine v. Scheiner, 107 S. Ct. 2829 (1987).* In the Pennsylvania case, the Court reviewed its prior decisions, and concluded: We find dispositive those of our precedents which make it clear that the Commerce Clause prohibits a State from imposing a heavier tax burden on out-of- state businesses that compete in an interstate market than it imposes on its own residents who also engage in commerce among States. % Under the Arkansas legislation, heavy trucks operating on the State’s highways were required to pay either an annual flat tax of $175 or a tax of five cents for each mile traveled in Arkansas; if a vehicle traveled more than 3,500 miles in a year, it was to the carrier’s advantage to elect to pay the flat $175 rate. * ATA’s challenge to the Arkansas HUE tax was pending in the Court at the time a decision was rendered in the Pennsylvania case (Scheiner). Following the Court’s decision, the decision of the Supreme Court of Arkansas was vacated and remanded for reconsideration in light of Scheiner. See American Trucking As- sociations, Inc. v. Gray, 288 Ark. 488, 707 S.W.2d 759 (1986), vacated and remanded, 107 S. Ct. 3252 (1987). 8 107 S. Ct. at 2839 (footnote omitted). Among the cases the Court relied on in evaluating the Pennsylvania flat tax was Complete Auto Transit, Inc. v. Brady, 480 U.S. 274 (1977), which the Court said had “necessarily called into question the future vitality of earlier cases that had upheld facially neutral flat taxes against challenges pre- mised on the rule of immunity for interstate commerce.” 107 S. Ct. at 2846. Notwithstanding the Scheiner decision, the State of Arkansas continued to collect the Arkansas HUE tax.’ Indeed, the taxes were not even escrowed until August 14, 1987, when the State was ordered to establish an escrow fund by Justice Blackmun (acting in his capacity as Circuit Justice). 108 S. Ct. 2 (1987). On March 14, 1988, the Supreme Court of Arkansas held that there was “little doubt” that this Court would—under Scheiner—- strike down the Arkansas HUE tax, and accordingly, the Arkansas court held the tax to be unconstitutional. ATA App. A at 2a-3a. . Utilizing Chevron’s governing test, the court concluded that its decision should be applied on a prospective-only basis. Indeed, the court extended the period of non- application of the Scheiner decision forward to August 14, 1987—-the date Justice Blackmun ordered that the HUE taxes be placed in escrow. C. The Importance of These Cases Amicus Tax Executives Institute submits that the proper resolution of the retroactivity issue—and the clari- fication of the standard to be used in resolving particular “The HUE tax was repealed during an October 1987 special session of the Arkansas legislature; in its place, the legislature imposed a replacement tax of 2'» cents per mile, with no ceiling for extensive highway use. 6 From the time the HUE tax was enacted in 1983 until Justice Blackmun’s order of August 14, 1987, approximately $159 million was collected under the discriminatory taxing scheme. ATA App. A at 3a. 9 cases—is of paramount importance. If the standard is not clarified, other States may conclude that they are free to apply this Court’s decisions on a prospective-only basis. Such a result could frustrate the policy underlying the Commerce Clause by allowing the States to enjoy the financial benefits of their discriminatory taxation—the fruits of their own unconstitutional acts. Perhaps more fundamentally, failure to clarify the weight and effect to be given to decisions of the Court could undermine its overall authority as the arbiter of constitutional issues. Il. Although the Constitution neither prohibits nor re- quires retrospective effect, Linkletter v. Walker, 381 U.S. 618, 629 (1965), the rule remains that “a legal system based on precedent has a built-in presumption of retro- activity.” Solem v. Stumes, 465 U.S. 638, 642 (1984). Accord Saint Francis College v. Al-Khazraji, 107 S. Ct. 2022, 2025 (1987). See generally L. Tribe, American Constitutional Law 29-30 & n.20 (2d ed. 1988).7 Thus, although exceptions to the rule of retroactivity should be recognized as a matter of policy, the exceptions should not swallow the rule.* In respect of civil cases, the factors to be analyzed in resolving the retroactivity issue were set forth by the Court in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).° 7 The general rule can be traced to Blackstone. 1 W. Blackstone, Commentaries *70-71; see Norton v. Shelby County, 118 U.S. 425, 442 (1886); United States v. The Schooner Peggy, 5 US. (1 Cranch) 103, 110 (1801). 8 See EEOC v. Vucitech, 842 F.2d 936, 941-42 (7th Cir. 1988) (“{t]he presumption [is] strongly in favor of retroactive applica- tion”). ®*The Chevron case did not involve the retroactive effect to be given to a ruling of unconstitutionality. Rather, the case addressed the reach of a decision that Louisiana’s statute of limitations gov- erned claims for personal injuries sustained on the Outer Conti- nental Shelf off the coast of Louisiana. In Chevron, the Court 10 In that case, the Court confirmed the general rule of retroactivity and held that, in determining whether there should be an exception to that rule, the following three factors should be considered: * Reliance: Whether the decision establishes a new principle of law or involves an issue of first im- pression whose resolution was not clearly foreseen. * Purpose: Whether, based on the history of the rule in question, its purpose and effect, non-retroactive application will advance or retard the operation of the new rule. * Inequity: Whether non-retroactive application is necessary to avoid injustice or hardship. 404 U.S. at 106-07. See Tatarowicz, Right to a Refund for Unconstitutionally Discriminatory State Taxes and Other Controversial State Tax Issues under the Com- merce Clause, 41 Tax Lawyer 103, 138-39 (1987). The Supreme Court of Florida in McKesson made no reference to Chevron in ruling that it need not apply its decision of unconstitutionality retroactively. The State of Arkansas in ATA acknowledged the relevance of the Court’s decision, but construed it to permit the applica- tion of the Scheiner case on a prospective-only basis. In doing so, the Arkansas court transmogrified the three- part test of Chevron into a standard so pliable that vir- tually all rulings of unconstitutionality could be applied, at a State’s choosing, on a prospective-only basis. That neither the Florida nor the Arkansas decision can withstand scrutiny under a proper reading of Chevron is held that its decision in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969), should not apply retroactively to litigants who had relied on several federal cases holding that admiralty law (specifically, the doctrine of laches) controlled the issue. 404 U.S. at 108-09. In Griffith v. Kentucky, 479 U.S. 314 (1987), which changed the analysis to be used in criminal procedure cases, the Court confirmed that Chevron continues to govern civil cases. 479 U.S. at 322 n.8. 11 confirmed by analyzing the three factors seriatim. The first factor—whether the decision at issue established a new principle of law—is, of course, the threshold require- ment for prospective-only treatment: if the governing principle was extant at the time of the decision, then the decision must be applied retroactively.” The principle underlying the instant cases—that dis- crimination against interstate commerce in the exercise of local taxing authority is unconstitutional—is far from new. Even before Bacchus and Scheiner, this Court had clearly ruled that the Commerce Clause proscribed tax statutes treating interstate businesses less favorably than local businesses. As the Court observed in Scheiner: Under our consistent course of decisions in recent years a state tax that favors in-state business over out-of-state business for no other reason than the location of its business is prohibited by the Com- merce Clause. 107 S. Ct. at 2841-42, citing Tyler Pipe Industries; Bacchus; Armco Inc. v. Hardesty, 467 U.S. 638 (1984) ; Westinghouse Electric Corp. v. Tully, 466 U.S. 388 (1984); Maryland v Louisiana, 451 U.S. 725 (1981); Boston Stock Exchange v. State Tax Commission, 429 U.S. 318 (1977). Had the Supreme Court of Florida properly applied the Chevron standard, it surely would have concluded that its decision had to be given retroactive effect. The Florida court did not break new ground in striking down the Florida alcohol beverage law; it expressly relied on this Court’s decisions in Bacchus and Hunt v. Washington State Apple Advertising Commission—decisions rendered four and eleven years before the Florida court’s decision. 10 See United States v. Johnson, 457 U.S. 537, 550 n.12 (1982) (if the “new principle” standard is not met, Chevron's other two factors need not be considered—the decision will be applied retro- actively ). 12 The Florida court did aver that the State had imple- mented the taxing scheme “in good faith reliance on a presumptively valid statute.” McKesson App. B at 2la. All statutes are presumed to be valid, however, until a court otherwise holds. To conclude that a State’s spu- rious “presumption of validity” satisfies the reliance prong of the Chevron standard would be to rob the test of all worth: States could act with virtual impunity, knowing that their “reliance” on “presumptively valid statutes” immunized them from constitutional attack. Indeed, Siates might infer a subtler, more disturbing message from such an approach: perhaps ignorance of the law is an excuse." As to the Arkansas HUE tax, the question whether Scheiner represented a “clear break” with prior precedent —thereby leaving open the issue of its retroactive appli- tion—is concededly problematic. From the date of the Court’s decision in Scheiner, however, the result is clear beyond peradventure: the HUE tax was unconstitution- ally discriminatory and any taxes collected under such a tax should be refunded. Even with respect to pre-Scheiner periods, it is not clear that the Arkansas decision survives Chevron’s threshold test. The question is not, as the Arkansas court assumed, “whether it was reasonable for the state to have conducted itself as it did” or whether “a reasonable person could easily have found [the tax] to pass Com- merce Clause muster.” ATA App. A at 3a-4a. Rather, the first Chevron factor focuses on whether the decision “overruled clear past precedent” or involved “an issue of first impression whose resolution was not clearly fore- shadowed.” 404 U.S. at 106. In light of the Court’s 11 See Chapman v. California, 386 U.S. 18, 21 (1967) (criminal procedure case) (“we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights”). 13 earlier decision in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), the result in Scheiner can be said to have been clearly foreshadowed. American Trucking Association v. Kline, No. 07-17-1667-85MVT (N.J. Tax Ct. Sept. 8, 1988). Chevron’s second test addresses whether non-retroactive application of the new rule will advance or retard the operation of the new rule. Again, the Florida court was silent on this issue. The Arkansas court, however, prof- fered a beguiling argument. Specifically, the court quoted from a decision of the Washington Supreme Court in which non-retroactive application of this Court’s decision in Tyler Pipe Industries was sustained. In that Wash- ington case, the court blithely stated: It is difficult to understand how retroactive applica- tion would encourage free trade among the states since whatever chill was imposed on interstate com- merce is in the past.... National Can Corp. v. Department of Revenue, 109 Wash. 2d 878, 888, 749 P.2d 1286, 1291 (1988), appeal dis- missed and cert. denied, 108 S. Ct. 2030 (1988), cited at ATA App. A at 4a. Under the Arkansas court’s reading of Chevron’s pur- pose test, a ruling of unconstitutionality would never be applied retroactively and the States would have an in- centive to enact unconstitutional statutes.“ The overall 12 In Kline, the New Jersey Tax Court held that Scheiner should be applied retroactively. The court stated that “[e]ven if Complete Auto Transit did not specifically overrule the Greyhound and Acro Mayflower cases of 1935, 1947 and 1950, . . . the invalidity of flat taxes which discriminate as a matter of practical effect was clearly foreshadowed by Complete Auto Transit.” Slip Op. at 9. The Aero Mayflower cases—Aero Mayflower Transit Co. v. Board of Railroad Commissioners, 332 U.S. 495 (1947), and Aero Mayflower Transit Co. v. Georgia Public Service Commission, 295 U.S. 285 (1935)— were cited by the Arkansas court as cases on which it relied in initially sustaining the HUE tax. ATA App. A at 4a. 13 See Tatarowicz, supra, 41 Tax Lawyer at 141-42 (“the prac- tical effect [of prospective-only application] would be to permit 14 result, therefore, would be to retard the purpose of the Commerce Clause. The courts’ treatment of the inequity test in Chevron is particularly troubling. Under Chevron, the issue is whether prospective application is necessary to avoid in- justice or undue hardship. Both the Florida and Ar- kansas courts devoted precious little time to analyzing any hardship the retroactive application of the decisions might bring. In McKesson, the Florida court referred to “equitable considerations,” but focused not on any hard- ship to the State but rather on the “windfall” the peti- tioners would “in all probability” receive (on the assump- tion that the unconstitutional taxes could be passed on to customers). McKesson App. B at 2la. The Arkansas court, too, made reference to the “unconscionable wind- fall” the petitioners would receive if refunds were or- dered; it also raised the specter of hardship in its ref- erences to the State’s having spent or “counted.on” the collected unconstitutional taxes. ATA App. A at 4a-5a.™ The courts’ “windfall” analysis not only lacks factual support ** but, more fundamentally, focuses on the wrong states the financial benefits of discriminatory taxation. A state could enact tax laws without concern for constitutional limitation, knowing that, if such laws were ultimately found to discriminate against interstate commerce, they could be repealed with impunity. ... [T]he prospective application of a finding of unconstitutionality retards the purpose of the commerce clause by offering the induce- ment of clear financial advantage to those states that violate it.”). ™ That the State had already expended the unconstitutional HUE taxes, or at least taken them into account for budgeting purposes, was the court’s justification for refusing to order refunds of the taxes collected during the post-Scheiner, pre-escrow period. ATA App. A at 5a. See Bacchus, 468 U.S. at 267 (even if the tax is completely and successfully passed on, taxpayers are entitled to litigate the extent to which the discriminatory tax adversely affected their ability to compete against local producers). 15 party. The issue is not whether a litigant might enjoy a benefit from lodging a successful challenge to an uncon- stitutional statute; that is often the case. Instead, it is whether there are factors present that, despite the losing litigant’s culpability, militate against the general rule of retroactivity. Thus, the inequity test measures the hard- ship or injustice that might befall the State (or third parties) and balances that hardship against the right (constitutional or economic) that would be more fully vindicated by the retroactive application of the decision. Under a properly framed inequity test, there should be no doubt that the “hardship” endured by the States—the required refund of unconstitutional taxes that had been “counted on”—does not pass muster. Indeed, if such a “hardship” were deemed sufficient to justify prospective treatment, unconstitutional tax statutes would rarely, if ever, be overturned retroactively. States invariably spend the revenues they collect. The sounder approach is to examine whether undue hardship would result from retro- active application of a decision. Under such an analysis, a different result obtains, for the “hardship” of which the States might complain is one of their own making—the result of their own unconstitutional acts." In this regard, it is instructive to consider those cases in which the Court has provided relief under the inequity prong of the Chevron test (or comparable standards). For example, in Lemon v. Kurtzman, 411 U.S. 192 (1973) (Lemon I1)—which was the only decision of this Court that the Florida court in McKesson cited on the retroactiv- '* Thus, the courts’ suggestion that retroactive application is in- appropriate because the petitioners in McKesson “in all probability” passed the economic burden of the tax on to customers or because in-state drivers in ATA had not sought a refund of the taxes they paid (under a taxing scheme designed to accord them beneficial treatment) has absolutely no bearing on whether the refund of the unconstitutional taxes would impose an undue hardship on the States. 16 ity issue—the Court limited the effect of its decision two years earlier in Lemon v. Kurtzman, 403 U.S. 602 (1971) (Lemon 1), which invalidated, on First Amendment grounds, a Pennsylvania statute authorizing State reim- bursement to private sectarian schools for certain educa- tional services provided by the schools. The hardships of which the Court was concerned in that case were not the State’s, but rather those of the private schools that had provided services and incurred expenses in reliance on the constitutionally defective statute. 411 U.S. at 203-04. (Indeed, the State would have been relieved of a financial burden had the Court applied its decision on a retroactive basis.) Similarly, in Cipriano v. City of Houma, 395 U.S. 701 (1969), the Court limited the retroactive effect of a decision holding unconstitutional a Louisiana statute per- mitting only property taxpayers to vote in elections called to approve the issuance of public utility revenue bonds. The hardship addressed by the Court was again not the State’s but rather that which would have been suffered by cities and bondholders (who had relied on the state law) had the decision been applied retroactively. 395 U.S. at 706." Thus, in applying the inequity test, the Court has focused on whether hardship would befall parties or other individuals who did not have it within their power to rectify the situation by adopting the rule in question. The States of Florida and Arkansas clearly did have the 17 See also Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87-88 (1982) (decision holding the Bank- ruptey Act of 1980 unconstitutional applied prospectively because of the substantial injustice and hardship that would otherwise be visited upon litigants who had relied on the statute); Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 722-23 (1978) (decision that city department’s employee benefit plan vio- lated Title VII of the Civil Rights Act of 1964, as amended, applied prospectively because of the “devastating” effect retroactivity could have “in large part on innocent third parties”—covered employees). 17 power to enact constitutional, nondiscriminatory tax statutes. Moreover, even assuming the States could demonstrate that they would suffer an undue hardship if compelled to refund immediately all unconstitutionally collected taxes, it does not follow—as the Florida and Arkansas courts effectively concluded—that the wronged taxpayers should receive nothing.'* In appropriate cases, a State might—perhaps under guidelines prescribed by the legis- lature—craft a refund policy that minimizes the “in- equity” the State might otherwise suffer. For example, a State might provide that the taxes unconstitutionally collected (plus an interest factor) could be claimed as a credit on the affected taxpayers’ future years’ tax re- turns."” In summary, the Florida court ignored, and the Ar- kansas court misapprehended, all three of Chevron’s tests. Their failure to analyze Chevron properly, if not recti- fied, could be used to sanction prospective-only applica- tion in respect of virtually all decisions declaring state tax statutes unconstitutional. Such a result would be pernicious—nullifying the Court’s decisions in Bacchus and Scheiner and frustrating the policy underlying the Commerce Clause. | The questions presented by this case are substantial and important not only because the Florida and Arkansas decisions threaten to eviscerate this Court's holdings in Bacchus and Scheiner, but also because the Florida and Arkansas cases are but recent examples of the States’ '’ Obviously, the hardship suffered by the States in such an instance would be no greater than the hardship collectively suffered by the taxpayers from whom the taxes were unconstitutionally exacted. 1 Tatarowicz, supra, 41 Tax Lawyer at 143 & n.248. Alterna- tively, the taxes at issue could be refunded in insta!lments. 41 Tax Lawyer at 143. 18 misconstruing both the requirements of the Commerce Clause and the standard set forth in Chevron. Indeed, during the past five years, there has been a vertiable wave of state court decisions in which discriminatory statutes have been found, in essence, to be unconstitu- tional on a prospective-only basis. For example, the State of West Virginia is now con- tending on the remand of Ashland Oil, Inc. v. Rose, 350 S.E.2d 531 (W. Va. 1986), appeal dismissed for want of final judgment, 107 S. Ct. 1949 (1987) (remand pending), that this Court’s decision in Armco Ine. v. Hardesty, 467 U.S. 638 (1984), should be applied only to Armco. Similarly, in National Can Corp., the Su- preme Court of Washington refused to give effect to, and refused to pay refunds under, this Court’s decision in Tyler Pipe Industries.*” See also Penn Mutual Life In- surance Co. v. Department of Licensing and Regulation, 162 Mich. App. 123, 412 N.W.2d 668 (1987), and Metro- politan Life Insurance Co. v. Commissioner of Insurance, 373 N.W.2d 399 (N.D. 1985), which both held that the Court’s decision in Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985), invalidating a provision taxing foreign insurers, should apply on a prospective- only basis." 2° The Court’s disposition of the National Can case last term notwithstanding, the Washington court's decision—and its analysis of Chevron (which the Arkansas court cited with approval in ATA) —-underscores the need for the Court to articulate clear standards concerning the prospective-only issue. *! For a list of other cases in which state courts have applied decisions that a tax is unconstitutional on a prospective-only basis, see Tatarowicz, supra, 41 Tax Lawyer at 117-18 n.89. Compare American Trucking Associations, Inc. v. Goldstein, 312 Md. 583, 541 A.2d 955 (1988) (overturning, based on Chevron, the State of Maryland's effort to postpone the effective date of the Scheiner decision for nearly a year); American Trucking Association v. Kline, No. 07-17-1667-85MVT (N.J. Tax Ct. ) »t. 8, 1988) (Scheiner applied retroactively); American Trucking Associations, Inc. v. Con- 19 These other cases—when viewed in conjunction with the cases at hand—vividly illustrate that the States, at best, misunderstand the balance that is to be struck in considering the retroactivity question and, at worst, have virtually no regard for the policy underlying the Com- merce Clause or for the precedents of this Court. State after state has adopted what can be described as a “heads I win, tails you lose” approach to cases implicating the Commerce Clause’s proscription on discriminatory tax statutes. If a State prevails in litigation and the chal- lenged statute is sustained, all taxpayers (rightfully) lose. But if a State loses and the statute is found to be constitutionally deficient, the State then declares that the decision established a “new principle” and nimbly con- cludes that it should receive prospective-only application. As a result, all taxpayers (with the possible exception of the victorious litigant who in any event may have in- curred substantial costs) lose. Such adroit reading of precedent and deft, self-serving application of Chevron may enrich the particular State’s fise, but the results can hardly be said to foster the policy underlying the Commerce Clause. If not clarified, the de- cisions below might not only lead States to ignore Com- merce Clause concerns but also discourage taxpayers from challenging clearly discriminatory tax statutes. These facts remain: * The enactment of discriminatory taxes violates the Constitution. * The collection of discriminatory taxes violates the Constitution. * The retention of discriminatory taxes violates the Constitution. Because the question of the refund of unconstitu- tionally imposed and collected taxes is one of remedy, it way, | Vt.) State Tax Rep. (CCH) { 200-306 (No. S-147-86WnC) (Vt. Super. Ct., Washington Co., Feb. 11, 1988), appeal docketed, No. 88-156 (Vt. Mar. 11, 1988) (Scheiner applied retroactively). 20 is properly addresed in the first instance by state courts. Bacchus, 468 U.S. at 277; Scheiner, 107 S. Ct. at 2847. The remand from this Court in such cases, however, invariably requires that the lower court’s disposition of the remedy question be “not inconsistent with this opinion.” 468 U.S. at 277; 107 S. Ct. at 2848. The wave of prospective-only holdings that have ensued fail the test of consistency—with respect both to the Com- merce Clause and the Court’s teaching in Chevron. It should be stopped. IV. Amicus Tax Executives Institute respectfully submits that. in light of the States’ repeated misapplication of the Chevron standard, it may be appropriate for the Court not only to clarify and thereby vivify that stand- ard, but to give consideration to the adoption of a new standard in respect of state tax statutes found to violate the Commerce Clause. Two terms ago, in Griffith v. Kentucky, 479 U.S. 314 (1987), this Court considered—and found constitutionally repugnant—the racially discriminatory use by prose cutors of peremptory challenges. Declaring that “[{t]he time for toleration has come to an end,” 479 U.S. at 323, quoting United States v. Johnson, 457 U.S. 537, 555-56 n.16 (1982), the Court concluded that generally new rules for the conduct of criminal prosecutions will be applied retroactively to all pending or non-final cases even if they constitute a “clear break” with the past. 479 U.S. at 328. See L. Tribe, American Constitutional Law 31 n.26 (2d ed. 1988). Although cases addressing the validity of discrimina- tory state tax statutes do not involve considerations of the same magnitude as those presented in criminal pro- cedure cases, such cases do implicate a constitutional right—an interstate business’s right under the Commerce Clause to be free from undue state-imposed burdens. 21 Thus, they involve rights different from, and indeed more significant than, the statute of limitations issue pre- sented in Chevron.” In addition, unlike the other civil cases in which the retroactivity issue has been considered, the unsuccessful litigant in a discriminatory state tax case—the party who seeks to have the finding of unconstitutionality ap- plied on a prospective-only basis (the State)—is the progenitor of the proscribed (unconstitutional) action. The States do have it within their power to enact consti- tutional tax statutes. This fact alone suggests that the States should be held to a higher standard in obtaining exceptions to the general rule of retroactivity. States should not be permitted to reap the benefits of discrim- inatory taxation while impeding interstate commerce. The States’ checkered history in enacting, collecting, and refusing to refund unconstitutional taxes only under- scores this. conclusion. As this Court stated in Griffith, “(t]he time for toleration has come to an end.” 479 U.S. at 323. CONCLUSION For the foregoing reasons, the Court should reverse the decisions of the courts below. Respectfully submitted, TIMOTHY J. MCCORMALLY TAX EXECUTIVES INSTITUTE, INC. 1001 Pennsylvania Avenue, N.W. Suite 320 Washington, D.C. 20004-2505 (202) 638-5601 Counsel for Amicus Curiae : Tax Executives Institute, Inc. Date: January 6, 1989 22 See note 9, supra. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0247%3A10. Public record. Not legal advice.