# Opposition Brief — Johnson Controls, Inc. v. Miller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1618%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2010 - **Citation:** 560 U.S. 935 ## Text Supreme Court, US FILEO APR 23 2010 | No. 09-981 OFFICE OF THE CLERK } IN THE Supreme Court of the Gnited States * = JOHNSON CONTROLS, INC.; ET AL., Petitioners, v. JONATHAN MILLER, SECRETARY OF THE FINANCE AND ADMINISTRATION CABINET OF THE COMMONWEALTH OF KENTUCKY; COMMONWEALTH OF KENTUCKY, DEPART- MENT OF REVENUE, Respondents. — eee siete ON PETITION FOR A WRIT OF CERTIORARI To THE SUPREME COURT OF KENTUCKY chs aa tencesindaeeetcooabass BRIEF IN OPPOSITION =e ee ae Saiceeaenemaas Laura M. Ferguson C. Christopher Trower Kentucky Department Counsel of Record of Revenue, Finance and electriclaw.com Administration Cabinet 3159 Ruman Rd., N.W. P.O. Box 423 Atlanta, GA 30327-1503 Frankfort, KY 40602 (404) 816-5066 ctrowcr@electriclaw.com APRIL 23, 2010 Counsel for Respondents QUESTIONS PRESENTED The questions presented are: ;. Does the Due Process Clause, as inter- preted by McKesson Corp. v. Div. of Alcoholic Beve- rages, 496 U.S. 18 (1990), and Reich v. Collins, 513 U.S. 104 (1994), require a State to consent to suits in its own courts brought to recover mere tax overpay- ments made under a state tax statute that is neither unconstitutional under the Constitution of the Unit- ed States nor unlawful under some overriding feder- al statute via the Supremacy Clause? 7 Does the Due Process Clause, as inter- preted in United States v. Carlton, 512 U.S. 26 (1994), require that retroactive tax legislation be enacted no later than “the first possible legislative session” following the legislature’s identification of the “legitimate legislative purpose” sought to be achieved by the retroactive legislation? 3. Does the Equal Protection Clause re- quire that tax statutes apply in the same way to all members of a “similarly situated” group of taxpayers, or to none? TABLE OF CONTENTS Page QUESTIONS PREY EOD) ccccccccsscssvercencsevevecvssvessisves i TABLE OF CONTENTS ..................00000 Liseuaweseihede deca li py SF a ge aye) gy) + per en i erem emai lil eet | og eR fed SNE ERE AER Fst Binet peers Ae meee e 1 A. - TAMTAGGEEY TR FOTUAS OE FAVE ies io ciidiccccstsesescescvs 3 B. Separate Returns by Separate 2 SE EA Et Ot Sh ya pines 6 ORM ee ef Ee eee 7 D. Department of Revenue Positions.................. 8 E. 1994 GTE Case and 1996 Legislation............ 9 Fish ce ene dere cicusnmemeennns 11 G. 2000 Enactment of KRS 141.200 (17) and hh ot aces tewene ren: 14 H. Retroactive Unitary Returns and Mere Tax “Overpayment” Claims...................20060+- 16 REASONS FOR DENYING THE PETITION.......... 19 Zz PETITIONERS’ TAX OVERPAYMENT CLAIMS ARE BARRED BY WELL SETFLED PRINCIPLES OF STATE SOVEREIGN IMMUNITY WHICH DO NOT NEED TOC BE REHASHED ON CERTIORARI.............. 19 Il. THE COURT HAS ALREADY PROVIDED AMPLE “GUIDANCE” ON “THE DUE PROCESS LIMITS OF RETROACTIVE LEGISLATION nvsevcccserivencscsosarseresns 28 Ill. THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE ALL-OR-NOTHING ECONOMIC REE 3 foc coda cnn eesscnedudeusencecyehunaeeld iueiseciacaaee Se eee EI lic dipeddvnsdntecnconevwnncnvencanicavincenpereeceenkente a TABLE OF AUTHORITIES Page Cases Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. eee, aE CII sot, pare p ce gavoenesedecs cones pee iN Stes ten DOG 21 Anolok v. United States, 873 F.2d 369, 374 (Fed. Rs EE do ehacmisic ee nueeu ccocreemeseces Rodda teae ta eedaeaaenancades 24 Armstrong v. Collins, 709 S.W.2d 437 (Ky. 1986).....13 Automobile Club of Michigan v. Comm ’r, 353 SB Bot Oe! 03s RRR IE eS Se Le enn eee ) Bacchus Imports, Ltd. V. Dias, 468 U.S. 263 Ds |) SARA eee One epulisi ddd acids ceaetitasainiia cudemuatompaneraaa nee Beers v. Arkansas, 61 U.S. 527, 529-530 (1857)........22 California v. Arizona, 440 U.S. 59, 65 (1979)............ 34 Carpenter v. Shaw, 280 U.S. 363, 369 (1930) ............ 26 City of New Orleans v. Dukes, 427 U.S. 297 tg. AANRGSIDEC RD RoR ertn gene AA Oren e aac aN my ae. 35 Clinton County Comms v. EPA, 116 F.3d 1018, i Be Ee Ly | ee re 24 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 RSUNNNUNTN ssh. t.c ca ant cechc sersbasiitesannacecieoduschasaredenuerceueneus idavennendodes 23 Davis v. Michigan Dep't of Treasury, 489 U.S. ca a cu ekbeseuentirs 5 Delia Aur Lines, Inc. v. Commonwealth, 689 Be a eg ee Os IE case cmeiges. pencorccee desevecesdvecnnesbsven. S) Dep't of Conservation v. Co-De Coal Co., 388 Sg a doa co isa ventainesve. vekrenseeaceasones 20 Department of Revenue v. Jack Cole Co., 474 Re Fe aise tveverecserverrvenosessorssnne: 20 Duke Power Co. v. Carolina Envir. Study Group, inc., 438 U.S. 59, 88 n.32 (1978)......................... .....3] Edwards v. U.S. Dept. of Energy, 200 Fed. Appx. 382, 389 (6% Cir. 2006), cert. den. 127 S.Ct. BOLD CI AD vcccsvevercnscccovece 3 Ag ELE eRe een 12 D4 Fife v. CIR, 82 T.C. 1 (1984)... Fletcher v. Stumbo, 163 S.W.3d 852 (Ky. 2005)........13 Harper v. Virginia Dep't of Taxation, 509 U.S. 86, Bad ees ARSENE SRT TNE aD ee a oe 3] Heller v. United States, 776 F.2d 92, 98 (3d Cir. 1985) 24 Hurry Up Broadway Co. v. Shannon, 102 S.W.2d 30, 31 (Ky. 1937).... EE RNa Juda v. United States, 13 Cl. Ct. 667, 689 (Cl. Ct. (8 REALISE SIORIE Pees Sn Ih ae ON Et aE Koch v. Alexander, 561 F.2d 1115 (4% Cir. 1977)........ 5 Laycock v. United States, 230 F.2d 848, 850 (9th Cir. 1956)... ...0:cociesealen yi cuscas+-.- A third and completely different type of return is the federal “consolidated” corporate return. The members of the “consoli- dated” group are determined solely by mathematical stock own- ership, regardless of the business conducted by each corporation, and include the common parent and each subsidi ary which 1s at least 80% owned by the common parent. There is no requirement that the parent and any of its subsidiaries conduct a “unitary” business’ A “unitary” or “combined” return is strictly a state tax law concept. The Internal Revenue Code permits qualifying corporations to elect to file a consolidated 3 called “combined” returns by tax cases, tax treatises, and the Petition. A tax “overpayment” is defined under Ken- tucky law as “the excess of the tax payments made over the correct tax liability determined under the terms of the applicable statute without reference to the constitutionality of the _ statute.” KRS 134.580(1)(b). The importance of the term “tax overpayment” is that Kentucky’s general tax refund statute, KRS 134.580(2), under which all of Petitioners’ refund claims have been made, only authorizes a refund or credit of an “overpayment of tax.” A separate Ken- tucky statute, KRS 134.590(1), provides for refunds of taxes “paid under a statute held unconstitutional.” The Kentucky Supreme Court has construed these two statutes to be mutually exclusive. Revenue Cab- inet v. Gossum, 887 S.W.2d 329, 334-335 (Ky. 1994). (KRS 134.580 “is limited” to “tax overpayments” as defined and does not “apply to situations where the constitutionality of a statute is at issue”). This point is crucial: under Kentucky law, a suit to recover a tax “overpayment” under KRS 134.580, such as the refund claims asserted by Peti- tioners, by definition does not and cannot involve a tax paid under a statute held to be unconstitutional. return, but the federal tax law has never permitted separate corporations to combine their income in a “unitary” return hased on the conduct of a “unitary” business. The Gossum case itself held that refund claims for state taxes paid under a Kentucky statute which exempted state employee retirement payments from the Kentucky income tax, but not federal employee retirement payments (and which therefore violated “the federal constitutional doctrine of intergovern- mental tax immunity,” see Davis v. Michigan Dep't of Treasury, 489 U.S. 803 (1989)), could not be brought under KRS 134.580 (which provides a four year sta- tute of limitations) but had to be brought under KRS 134.590 (which provides a shorter two year statute of limitations). 887 S.W.2d at 334-335. A “refund claim,” like a complaint in a civil ac- tion, merely states the taxpayer's contention that a tax “overpayment” has been made. ‘T'axpayers often make refund claims by filing an “amended return” for the tax year. But an amended return filed after the due date for the original return (e.g., April 15, 2010 for 2009 tax returns) does not replace or super- sede the original return. Koch v. Alexander, 561 F.2d 1115 (4% Cir. 1977) (amended returns “showing a smaller liability than initially reported are generally treated as claims for refunds’); Rev. Rul. 57-601, 1957-2 CB 614 (amended return filed after due date is merely refund claim). Using a “unitary” return to compute taxable income and tax lability, does not automatically in- crease or decrease taxable income or tax liability, or generate a tax “overpayment” or a tax “underpay- ment,” versus the aggregate results of using “sepa- rate” returns for each member of the alleged unitary group. The type of tax return, like any tax account- ing method, merely affects the computation of taxa- ble income and tax liability. Whether an “overpay- “overpayment” or “underpayment” exists depends on whether (i) the actual tax payments made by the taxpayer for the year, exceed (or are less than) (1) the taxpayer’s correctly computed tax hability de- termined under the applicable substantive law. B. Separate Returns by Separate Cor- porations KRS 141.200(17) and KRS 141.200(18) were not written on a clean legislative slate. Kentucky’s first income tax law, enacted in 1936, required separate corporations, whether or not affiliated, to file separate income tax returns. Ky. Stat. § 4281b-18, 1936 Ky. Acts 3™¢ Ex. Sess. ch. 7, § 18, provided that “every corporation doing busi- ness” in Kentucky “shall make a return,” and man- dated that “corporations which are affiliated shall each make separate returns.” When the Kentucky Revised Statutes were enacted in 1942, the fundamental requirement of separate returns by separate corporate entities was carried over in KRS 141.200(1), which provided: “corporations that are affiliated must each make a separate return.” See Ky. Rev. Stat. § 141.200(1) (15 ed. 1942). 6 C. 1966 UDITPA Changes Prior to 1966, Kentucky’s corporate income tax law sought to tax a corporation on its income from “sources” in Kentucky, because the basic federal con- stitutional rule is that a State cannot tax income that is not in some way connected to property or transactions or business conducted in the taxing State. This focus on the geographic “source” of in- come invited metaphysical disputes about “where” income was earned, and was ill-suited to an economy dominated by large corporations with nationwide businesses. In 1966, the Kentucky General Assem- bly adopted a more modern and practical approach, recommended by the Multistate Tax Commission and the National Conference of Commissioners on State Laws, of dividing corporate income into “busi- ness” and “non-business” income. “Business income” was defined, generally, as income “from transactions and activity in the regular course of a trade or busi- ness” of the corporation, and “non-business income” was defined as “all income other than business in- come.” Under this approach, “business income” is “apportioned” or divided among the States according to a three factor property, payroll, and sales formula used to compute an “apportionment factor,” and items of “non-business income” are “allocated” to spe- cific States using a set of mechanical rules. The gen- eral effect is that if a corporation’s “apportionment factor” for State X is 15% (roughly indicating that 15% of its “business income” is attributable to opera- tions in State X, as measured by its relative proper- ty, payroll, and sales in Stute X versus all States), then 15% of its income is “apportioned” to State X and subject to taxation under State X’s laws. The other 85% of its “business inceme” is “apportioned” to other States. The 1966 legislation, patterned after the Uni- form Division of Income for Tax Purposes Act, was incorporated into Chapter 141 (the income tax sta- tute) of the Kentucky Revised Statutes by 1966 Ky. Acts ch. 176. But — and this is a very significant “but” — the i966 legislation made no change whatsoever to the provisions of KRS 141.200(1) — the statutory re- quirement of a “separate return” from “each” corpo- ration. The “apportionment” provisions of the 1966 legislation were separately codified as KRS 141.120, generally referred to as the “apportionment statute.” D. Department of Revenue Positions From 1972 until 1988, the Kentucky Depart- ment of Revenue interpreted KRS 141.120 — the new apportionment statute — as authorizing the use of unitary returns to compute the combined tax lia- bility of the members of a group of corporations con- ducting a “unitary” business. 8 6) In 1988, the Department of Revenue deter- mined that its prior interpretation of KRS 141.120 had been erroneous, and announced in Revenue Poli- cy 41P225 (the state equivalent of an IRS revenue ruling) that separate returns should be filed by a parent and each of its subsidiaries, unless a subsidi- ary was a mere “paper corporation with limited via- ble activities.” The Department’s correction of what it consi- dered to be an erroneous interpretation of the appor- tionment statute was entirely proper. Automobile Club of Michigan v. Comm’r, 353 U.S. 180, 183 (1957) (RS not precluded in 1945 from revoking er- roneous 1934 and 1938 revenue rulings; doctrine of equitable estoppel “is not a bar to the correction by the Commissioner of a mistake of law’); Delta Air Lines, Inc. v. Commonwealth, 689 S.W.2d 14, 20 (Ky. 1985) (“erroneous interpretation of the law [by an ad- administrative agency] will not be perpetuated”: Revenue Department has “affirmative responsibility” to “abandon” an “erroneous policy when it discover[s] its error’); Revenue Cabinet v. Lazarus, Inc., 49 S.W.3d 172, 175 (Ky. 2001) (Revenue Cabinet cannot “change the [statutory] law by mistake”). KE. 1994 GTE Case and 1996 Legislation Revenue Policy 41P225 sparked a number of lower court lawsuits in which taxpavers challenged the Department’s position, and contended under var- ious theories that unitary returns were permitted or required under Kentucky law. ) The fundamental statutory construction dis- pute was not settled until 1994 when the Kentucky Supreme Court, in GTE v. Revenue Cabinet, 889 S.W.2d 788 (Ky. 1994), construed KRS 141.120 (the apportionment statute) to require a group of corpora- tions that conduct a “unitary” business to file a “uni- tary” return in Kentucky. The GTE decision finessed the conflict between KRS 141.200(1), the statute which requires separate returns by “each” corpora- tion, and its construction of KRS 141.120, by reading the former statute’s use of the term “corporation” to mean what the G7E Court called a “unitary corpora- tion” comprised of the parent and its unitary subsid- laries The GTE case was decided on December 22, 1994. The Kentucky General Assembly was not then in session, and did not meet again until 1996, be- cause at the time the Kentucky Constitution only al- lowed the General Assembly to meet in “regular session” for 60 days in even numbered years. ® At the first available opportunity after GTE was decided, the Kentucky General Assembly in its 1996 regular session abrogated GTE by amending KRS 141.120 (the statute construed in GTE) to pro- vide that “nothing in this section shall be construed as allowing or requiring the filing of a combined re- turn under the unitary business concept,” and by 6 The Kentucky Constitution was amended in 2000 to allow 30 day sessions in odd numbered years, the first of which was con- vened in 2001. 10 making the amendment retroactively effective for 1995 and all future taxable years.’ After the 1996 General Assembly adjourned, it became apparent that the Commonwealth still faced substantial exposure for unitary return refund claims. A number of parent-subsidiary groups, in- cluding Petitioners, contended that they had con- ducted a “unitary” business during pre-1995 years, and were therefore permitted under G7'E to make unitary return refund claims for those pre-1995 years for which refund claims were not otherwise barred by the statute of limitations.* These unitary return refund claims for pre-1995 were not affected by the 1996 legislation, which only applied to 1995 and subsequent years. F. 1998 Budget Bill None of the decisions of the Kentucky courts below turned on the precise amount of the refund claims made by Petitioners and others, or on the dates the refund claims were made, or on the specific years for which tax overpayments were alleged to have been made. The opinion of the Franklin Circuit Court, a trial court of general jurisdiction, states that by the end of 1995, the Kentucky Department of Revenue “estimated” the total exposure at “about $50,000,000.” As additional claims were filed, the ’ See KRS 141.200(11), added by 1996 Ky. Acts Ch 239 § 1, § 3. = KRS 134 580, Kentucky’s general] tax refund statute, requires that refund claims be made within four years after the due date of the return, including extensions. fund pot Department of Revenue increased its estimate of the exposure to $160,000,000 in October 1996 and “al- most $200,000,000 at the end of June 1998.” Pet. App. 196. Exactly when or how this estimated exposure was communicated by the Department of Revenue to the leadership of the Kentucky General Assembly is not revealed by the opinions of the Kentucky courts. This comes as no surprise: the Kentucky General Assembly was not in session from April 1996 until January 1998. What we do know, however, is that “in re- sponse [to these estimates], to avoid a huge loss to the general fund, at the next legislative session, 1998, the General Assembly included in the 1998- 2000 budget bill, a measure which prohibited the Revenue Cabinet from paying any post-G7E refund claims,” t.e., unitary return refund claims filed after December 22, 1994. Pet. App. 29 (concurring opinion of Schroeder, JJ.). In Kentucky parlance, the “budget bill” is the appropriations bill enacted by the General Assembly in its biennial “regular session” to authorize expendi- tures of public monies during the two fiscal years (July 1 through June 30) following the “regular ses sion.” Under the Kentucky Constitution, monies held in the State Treasury may not be legally ex- pended unless “appropriated” by the General Assem- bly. See Ky. Const. § 230; Fletcher v. Stumbo, 163 S.W.3d 852 (Ky. 2005). AJthough the biennial “budget bill” is mostly a soporific listing of authorized line item expenditures for highways, schools, social services, government operations, and public works, the General Assembly is constitutionally permitted to include within the “budget bill” substantive provisions which temporari- ly suspend or change the effect of a specified provi- sion of the permanent Kentucky Revised Statutes for two years. See Armstrong v. Collins, 709 S.W.2d 437 (Ky. 1986). In reviewing the tortured path of KRS 141.200(17) and KRS 141.200(18), the Kentucky Su- preme Court concluded that “the General Assembly was not apprised of, or at least was not able to ad- dress, these problems [the $200,000,000 refund claim exposure] until late in the 1998 regular session, when it was well into the budgeting process.” Pet. App. 7. Since the General Assembly met only “every other year then, the first chance to deal with the problem with direct legislation would come two years later,” u.e., in 2000. Jd. “[T}jo at least temporarily patch the problem,” the General Assembly “inserted a provision in the 1998 Budget Bill barring the state treasury from paying out any refunds” under “the theory announced in GT'E.” Pet. App. 7-8. But be- cause “the Budget Bill would only be in effect for two years,” the “problem would have to be addressed ful- ly in 2000.” Pet. App. 8. The temporary legislative fix in the 1998 budget bill, enacted as 1998 H.B. 321 § 33, provided 13 that “notwithstanding KRS 134.580 [the general tax refund statute], no taxpayer shall be refunded” any tax overpayment “attributable to the filing” of a uni- tary return for a pre-1995 year “after December 22, 1994.” This prohibition on the payment of unitary return refunds was probably an excess of virtue, be- cause the 1998 budget bill had not appropriated any funds for the payment of such claims. But before the constitutionality of this stopgap measure could be determined by an appellate court, the prohibition “expired on its own terms in 2000,” Pet. App. 104 (Circuit Court Opinion), when the two year 1998 budget bill expired. G. 2000 Enactment of KRS 141.200 (17) and KRS 141.200(18) We now come to 2000, when “the General As- sembly finally had a chance to deal directly with the emerging problem,” according to the Kentucky Su- preme Court, which had no difficulty concluding that “there can be no question that the legislature acted to correct what it viewed as a mistake in GT7'EF’s in- terpretation of the law, that it had a legitimate go- vernmental purpose (raising and_ controlling revenue), and that the statute rationally furthers this purpose.” Pet. App. 20. Justice Schroeder’s concurring opinion, which says the statute was enacted “to prevent a massive loss to the state treasury as a result of the G7'E deci- sion,” Pet. App. 31, quotes the principal sponsor of the 2000 legislation, who emphasized that the re- 14 troactive amendments were necessary to avoid hav- ing to slash funding for education and social services. “If we don’t do this [pass H.B. 541], it could cost us up to $190,000,000. These corporations that are involved did not plan their business based on filing the way that they are now attempting to come back and get refunds .... But now they want to come back and raid the state treasury . . . to the tune of $190,000,000. And that’s what this bill is all about... [I]f we don't do it, then we better figure out how to cut the budget $190,000,000.” ‘Transcript of Hearing on H.B. 541, House Appropria- tions and Revenue Committee, Febru- ary 22, 2000, (remarks of Chairman Moberly), quoted at Pet. App. 31 n.2. The 2000 General Assembly responded by enacting KRS 141.200(17) and KRS 141.200(18) ° the statutes challenged here. Both statutes were expressly made retroactive to 1994 and prior years.!° The retroactive reach of the statutes was essential: the unitary method re- 9 See 2000 Ky Acts. ch 543, § 1, initially codified as KRS 141 200(9) and KRS 141.200(10), and subsequently re-codified as KRS 141.200(17) and KRS 141.200(18), see 2005 Ky. Acts ch 168, § 15. 10 See KRS 446.080(3) (General Assembly may make statute retroactive if “expressly so declared’). — 15 fund claims that jeopardized the Commonwealth’s treasury were all made by filing retroactive unitary returns after the 1994 GTE decision, for 1994 and prior years. Both statutes only apply to retroactive unitary returns. That is, the statutes only apply if the group members initially filed separate returns, and then switched to a retroactive unitary return. If a corpo- rate group filed a unitary return or made a unitary return refund claim, on or before December 22, 1994. neither statute applies. H. Retroactive Unitary Returns and Mere Tax “Overpayment” Claims We refer to the unitary returns filed by Peti- tioners and other parent-subsidiary groups after the GTE decision as “retroactive” unitary returns rather than as “amended” returns, because none of the Peti- tioners filed a timely unitary return by the due date for 1994 or any prior year.!!1 These retroactive unita- ry returns were labeled as “amended” returns, but you can’t amend a tax return that has never been filed. As the Kentucky Supreme Court observed, Pe- titioners “sought to amend their returns by substi- tuting” unitary returns for previously filed separate returns. Pet. App. 4. None of the Petitioners claims to have made a tax overpayment under a Kentucky tax statute that it Fach of Petitioners’ unitary returns was, however, filed with- in the four year statute of limitations for refund claims. 16 violates the Constitution of the United States or that is otherwise unlawful under some federal statute. Each refund claim is based exclusively on the use of a retroactive unitary return under KRS 141.120 as construed by the GTE case, frozen in time and unaf- fected by the 1996, 1998, and 2000 legislation. All the refund claims in question were brought exclusively under KRS 134.580, Kentucky’s general tax refund statute, which expressly does not apply to claims for refund of taxes “in any case in which the statute may be held unconstitutional,” see KRS 134.580(6). Petitioners’ refund claims are therefore mere tax overpayment refund claims, based on using one type of tax return rather than another type of tax re- turn, to compute tax liability. The tax overpayments allegedly made by Petitioners, can no more be said to have been made under an unconstitutional or unlaw- ful tax statute, than a taxpayer who mistakenly uses straight line rather than accelerated depreciation, or who incorrectly computes the amount of a deduction, or who erroneously interprets the substantive tax law, can be said to have paid taxes under an uncons- titutional or unlawful tax statute. Stated another way, the tax overpayments al- legedly made by Petitioners are in no way caused by or attributable to any feature of the Kentucky corpo- rate tax law alleged to be unconstitutional or other- wise unlawful under federal law. All of the tax overpayments alleged to have been made by Peti- oe ~] tioners are attributable solely to Petitioners’ using separate returns, rather than unitary returns, to compute the taxable income and tax liability initially paid for the years in question. !* The Kentucky Department of Revenue disal- lowed each of the Petitioners’ refund claims on the merits, l.e., because the alleged unitary group failed to establish that it conducted a unitary business un- der the facts of its particular case and applicable law. Pet. App. 106 n.3 (Franklin Circuit Court Opinion). \2 The federal tax refund statutes do not distinguish between refund suits brought to recover taxes paid under an unconstitu- tional statute, and refund suits brought to recover taxes erro- neously or incorrectly paid under a constitutional statute. 28 U.S.C. § 1346(a)(1), the Congressional waiver of the United States’ sovereign immunity, gives the federal district courts ju- risdiction to entertain suits against the United States for “the recovery of any internal-revenue tax alleged to have been erro- neously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or 1n any manner wrongfully collected un- der the internal-revenue laws.” Using the federa] statutory terminology, “a tax 1s overpaid when a taxpayer pays more than 1s owed, for whatever reason or no reason at all,” United States v. Dalm, 494 U.S. 596, 609 n 6 (1990). The term “overpayment” under the federal statutes thus covers more conceptual territory than it does under Kentucky law, and “encompasses ‘erroneous- ly, ‘illegally,’ or ‘wrongfully’ collected taxes, as those terms are used in 28 U.SC. § 1346(a)(1),” id., and would include taxes paid under an unconstitutional statute. The taxpayer in United States v. Carlton, for example, claimed to have overpaid estate tax habilitvy because a deduction otherwise allowable to the es- tate had been retroactively repealed in violation of the Due Process Clause, and sued under § 1346(a)(1) to recover the tax. 18 REASONS FOR DENYING THE PETITION The Kentucky Supreme Court’s decision is a comprehensive and well reasoned application of cor- rectly stated principles of rational basis review of re- troactive tax statutes under the Due Process Clause and of statutory classifications in economic legisla- tion under the Equal Protection Clause. I. Petitioners’ tax overpayment claims are barred by well settled principles of state sovereign immunity which do not need to be rehashed on certiorari. The Petition’s first reason for granting the writ is the startling assertion that “Petitioners pos- sessed a due process right to pursue refund claims for overpaid taxes,” and that KRS 141.200(17) “de- prive[s} Petitioners of this due process right by prec- luding the Petitioners from pursuing their refund claims,” Pet. 13. The “refund claims for overpaid taxes” to which the Petition refers means the refund claims made by the Petitioners under KRS 134.580, and necessarily refers to mere tax “overpayments” computed under a constitutional tax statute. In other words, the Petition contends that the Due Process Clause requires a State to consent to suits in its own courts brought to recover mere tax overpayments made under a state tax statute that is neither “unconstitutional” under the federal Consti- tution nor “unlawful” under some overriding federal statute via the Supremacy Clause. It may be helpful to clear away the conceptual underbrush. Under Kentucky law, a taxpayer has no “right” to sue the Commonwealth to recover an al- leged tax overpayment, unless the General Assembly has consented to the suit. #.g., Department of Reve- nue v. Jack Cole Ca., 474 S.W.2d 70, 72 (Ky. 1971) (refund suit “cannot be sustained because [taxpay- ers] cannot sue the Commonwealth without legisla- tive consent”). “[T]he right to a refund of illegally or improperly collected taxes does not derive from the common law, but is a matter of legislative grace.” Revenue Cabinet v. Gossum, 887 S.W.2d 329, 334 (Ky. 1994), quoting Dep't vf Conservation v. Co-De Coal Co., 388 S.W.2d 614 (Ky. 1964). Accord, Hurry Up Broadway Co. v. Shannon, 102 S.W.2d 30, 31 (Ky. 1937) (absent consent to refund suit, taxpayer “would be without any right whatsoever to collect such taxes from the Commonwealth ... such right being a purely statutory one’). The federal rule is the same. United States v. Dalm, 494 U.S. 596 (1990), holds that “under settled principles of sovereign immunity” a taxpayer cannot sue the National Government to recover tax over- payments without consent, id. at 608, and that even the Supreme Court cannot “go beyond the authority Congress has given us in permitting |tax refund] suits against the Government,” because “if any prin- 20 ciple is central to our understanding of sovereign immunity, it is that the power to consent to such suits 1s reserved to Congress,” id. at 610 So much for the notion that a taxpayer has a “due process right” to sue a State to recover a tax overpayment without consent. KRS 141.200(17) retroactively revokes the Commonwealth’s consent to unitary return refund suits, such as those brought by Petitioners, by pro- viding that “no claim for refund” made for a pre-1995 year by a retroactive unitary return filed after De- cember 22, 1994, “shall be effective or recognized for any purpose.” The Kentucky Supreme Court has construed this language and held that “the plain meaning” of KRS 141.200(17) is that “the legislature withdrew its consent, specifically, to be sued for a re- fund under a combined return based on the unitary business plan.” Pet. App. 11.1% ‘8 The construction of KRS 141 200(17) by the Kentucky Su- preme Court “become[s] a part of the statute” for purposes of review by this Court. Wheeling Steel Corp. v Glander, 337 US 562, 566 (1949); Allied Stores of Ohio, Inc v Bowers, 358 US. 522, 526 (1950). The 2007 Kentucky General Assembly made its intention pluperfectly clear by retroactively amending the general tax refund statute to provide that “notwithstanding any provision of the Kentucky Revised Statutes to the contrary, the Commonwealth hereby revokes and withdraws its consent to suit in any forum whatsoever on any claim for recovery” of “any tax overpayment” for a pre-1995 year based on a retroactive unitary return filed after December 22, 1994. The 2007 legisla- tion apphes to “all claims for such taxable years pending in any judicial or administrative forum.” See KRS 134 580(9). The 2007 legislation 1s a virtual carbon copy of the federal legisla Perhaps the Petition means that KRS 141.200(17), which retroactively revoked the Com- monwealth’s consent to unitary method refund suits, unconstitutionally snatched from Petitioners some “due process right” they had in the Commonwealth’s prior consent to suit. There is very little gas in this conceptual tank. It has been settled constitutional law for over 150 years that a State may retroactively revoke its consent to suit, even after the cause of action has arisen and even after suit has been filed. Beers v. Arkansas, 61 U.S. 527, 529-530 (1857) (retroactive revocation of consent to suit on bonds issued by the State unless certain procedural requirements satis- fied; keld, because consent to suit “is altogether vo- luntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued... and may withdraw its con- sent whenever it may suppose that justice to the public requires it;” State legislature “might have re- pealed the prior law {granting consent] altogether, and put an end to the jurisdiction of their courts in suits against the state, if they had thought proper to do so”). Beers v. Arkansas is no hoary precedent fallen into desuetude. Its holding has been repeatedly re- confirmed and relied upon by the Court in many tion upheld in Edwards v. U.S Dept of Energy, 200 Fed Appx. 382, 389 (6th Cir. 2006), cert. den. 127 S Ct. 1913 (2007) » ) gy modern cases, including Raygor vu. Regents of Univuer- sity of Minnesota, 534 U.S. 533, 543 (2002), and AI- den v. Maine, 527 U.S. 706. 746 (1999). within the last 15 years. College Savings Bank v. Florida Prepa- id Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999), quoted Beers’ key holding that a State’s “deci- sion to waive [sovereign] 1mmunity, however, ‘is al- together voluntary on the part of the sovereignty,” and reaffirmed that “a State may, absent any con- tractual commitment to the contrary, alter the condi- tions of its waiver and apply those changes to a pending suit.” 527 U.S. at 675-676. The sovereign’s consent to suit is not a proper- ty might protected by the Due Process Clause; ergo, revocation of consent to suit invades no constitution- ally protected interest. Justice Brandeis’ opinion for a unanimous Court in Lynch v. United States, 292 U.S. 571 (1934), confirms that the Petitioners had no constitutionally protected interest in the Commonwealth’s prior con- sent to suits to recover alleged tax overpayments, and therefore have no tenable argument that the re- troactive revocation ot consent to suit in KRS 141.200(17) violated any rights vouchsafed by the Due Process Clause. Lynch upheld retroactive revo- cation of Congress’ consent to sue the United States on war risk insurance policies, with an unlimited pe- riod of retroactivity. “Although consent to sue was... given when the policy issued Congress retained power to withdraw the consent to sue at any time. [(C]onsent to sue the United States is a privilege ac- 23 corded, not the grant of a property right protected by the Fifth Amendment.” 292 U.S. at 581. Justice Douglas’ opinion for a unanimous Court in Maricopa County v. Valley Nat’ Bank, 318 U.S. 357 (1943), upheld retroactive revocation of con- sent to suit against a federal agency, with an unli- mited period of retroactivity. “Such consent, though previously granted, has now been withdrawn. And the power to withdraw the privilege of suing the United States knows no limitations.” 318 U.S. at 362. Subsequent decisions of the federal Courts of Appeals have unflinchingly followed Lynch and Ma- ricopa County. E.g., United States v. Lindsey, 202 F.2d 239, 240 (ist Cir. 1953) (“consent to sue the United States is a privilege which 1s revocable at any time”); Laycock v. United States, 230 F.2d 848, 850 (9th Cir. 1956) (“well settled that the power to with- draw” consent “knows no limitations”); Juda v. Unit- ed States, 13 Cl. Ct. 667, 689 (Cl. Ct. 1987) (“unbroken line” of decisions); Heller v. United States, 776 F.2d 92, 98 (3d Cir. 1985) (“Congress’ power to remove a right to sue the government 1s ab- solute.”); Clinton County Comm'rs v. EPA, 116 F.3d 1018, 1026 (3d Cir. 1997) (egislature’s power to withdraw the privilege of suing the sovereign “knows no limitations’); Edwards v. U.S. Dept. of Energy, 200 Fed. Appx. 382, 389 (6 Cir. 2006), cert. den. 127 S.Ct. 1913 (2007) (power to withdraw consent “knows no limitations”); Anolok v. United States, 873 F.2d 369, 374 (Fed. Cir. 1989) (‘no indication in any later 24 [Supreme Court] decision that Lynch is any other than an accurate statement of the law”). Petitioners contend that this “due process right to pursue their refund claims,” t.e., to sue the Commonwealth in its own courts, was established by McKesson Corp. v. Div. of Alcoholic Beverages & To- bacco, 496 U.S. 18 (1990), and Reich v. Collins, 513 U.S. 422 (1998).” Pet. 15. Neither McKesson nor Reich may properly be freighted with the “due process right” claimed by the Petition, and the decision of the Kentucky Supreme Court in no way conflicts with either McKesson or Reich. Both McKesson and Reich differ from this case in three fundamental respects. First, both McKesson and Reich involved state tax statutes which violated the federal Constitution. Neither involved a mere tax overpayment claim, such as a claim that a taxpayer has overpaid tax lia bility by computing a depreciation deduction using straight line rather than accelerated depreciation, or (as here) a claim that the taxpayer has overpaid tax hability by computing taxable income using a sepa- rate return rather than a unitary return. In McKesson, the Florida Supreme Court had already determined that a Florida state tax statute (which imposed a discriminatory tax on out-of-state beverages but not on in-state citrus beverages) vi- olated the dormant Commerce Clause, under Bac- chus Imports, Ltd. v. Dias, 468 U.S. 263 (1984). See 29 496 U.S. at 22. In Reich, a Georgia state tax statute taxed pension income received by federal retirees but exempted pension income received by state govern- ment employees. It was uncontested that the Geor- gia statute and similar statutes of “numerous States” violated the “constitutional intergovernmental tax immunity doctrine,” under Davis v. Michigan Dept of Treasury, 489 U.S. 803 (1989)). See 513 U.S. at 108. Thus both McKesson and Reich are statements of the constitutional common law of remedies, 1.e., what remedies are constitutionally required or per- mitted choices when a state court with subject mat- ter jurisdiction considers what remedies may or must be fashioned when a taxpayer has paid taxes under a state statute determined to be unconstitutional. This inquiry starts with the basic constitutional principle, quoted by both McKesson and Reich, that “a denial by a state court of a recovery of taxes ex- acted in violation of the laws or Constitution of the United States by compulsion is itself in contraven- tion of the Fourteenth Amendment,” McKesson, 496 U.S. at 34; Reich, 513 U.S. at 109 (both quoting Car- penter v. Shaw, 280 U.S. 363, 369 (1930)). But where, as here, no claim is made that any taxes have been “exacted in violation of the laws or Constitution of the United States,” neither McKesson nor Reich gains any conceptual traction. Second, in both McKesson and Reich, the de- fendant States had consented to the refund suits in their own courts by the plaintiff taxpayers, thereby waiving state sovereign immunity. As the Court 26 pointedly observed in McKesson, “the Florida courts accepted jurisdiction over this suit which sought monetary relief’ from the State, 496 U.S. at 26, and Florida “concedels] that the State waived any sove- reign immunity from suit through {the state sta- tute’s] authorization of a state-court refund action,” 496 U.S. at 49 n.34. Georgia in Rerch had similarly waived its state sovereign immunity by statutorily authorizing refund suits to recover “illegally as- sessed” taxes, which the Court found to be an “ob- vious’ consent to suits to recover “state taxes assessed in violation of federal law.” 513 U.S. at 111. The state courts in McKesson and Heich had subject matter jurisdiction to entertain the claims asserted against Florida and Georgia. Both States had waived state sovereign immunity. But neither McKesson nor Reich says anything about the scope of state sovereign immunity when it has not been waived, or about the constitutional power of a State to retroactively revoke a prior waiver. Third, both McKesson and Reich base their analyses on the proposition that exaction of a tax isa deprivation of property within the meaning of the Due Process Clause, and at the most hold that a State must provide “meaningful backward-looking relief to rectify any unconstitutional deprivation,” McKesson, 496 U.S. at 32, or “a clear and certain remedy for taxes collected in violation of federal law,” Reich, 513 U.S. 108. Assuming arguendo that these holdings have any vitality beyond cases like McKes- son and Aeich where state sovereign immunity has ae been waived, they do not have any staying power here: the Kentucky corporate income tax law has not been held to be unconstitutional or to otherwise vi- olate federal law. A mistake by a taxpayer in determining his tax liability does not transmogrify a constitutionally valid state tax statute into an “unconstitutional de- privation” of property or an exaction of a tax “in vi- olation of federal law.” IT. The Court has already provided ample “guidance” on “the due process limits of retroactive legislation.” The Petition’s second reason for granting cer- tiorari starts by asking the Court to “offer guidance to States and taxpayers on the due process limits of retroactive legislation” Pet. 19, but ends by asking the Court “to establish that retroactive legislation violates due process when a state legislature fails t:o’ enact the legislation at the first possible legislative session,” Pet. 24. Presumably this Due Process Clause requirement would shackle Congress as well. The Court has already provided all the “guid- ance” needed on the permissible reach of retroactive legislation in three prior decisions. United States v. Carlton, 512 U.S. 26, 30-31 (1994) (“test of due process’ for “retroactive economic legislation” is “met simply by showing that the retroactive application of the legislation is itself justified by a rational legisla- tive purpose.” Accord, Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729-730 (1984); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976). The Petition fails to make any showing that the Carlton test has bemused the lower courts, or has led to decisions by different courts that cannot easily be reconciled as slightly different applications of a properly stated rule of law. Indeed, the Petition admits that “lower courts have followed” Cariton al- beit “in different ways,” Pet. 21, the operative word being “followed.” +4 The Petition then abruptly veers into cold and deep water by advancing the propositions that “due process should limit state legislatures to enacting re- troactive legislation only at the first opportunity to do so,” and that “it is fundamentally irrational” for a state legislature “to understand that a revenue or tax problem exists that can only be remedied through retroactive legislation, and fail to enact the legisla- tion at the first possible legislative session.” Pet. 24. These propositions are much too extravagant to be seriously maintained, or to warrant the Court’s consideration on certiorari. What property interest i¢ The Petition at 23 n.3 quarrels with the Kentucky Supreme Court’s factual determination that the Kentucky General As- sembly enacted KRS 141.200(17) and KRS 141.200(18) “at the furst available opportunity, as 1t became aware of the issues,” 296 S W 3d at 401, asserts that “the undisputed evidence” be- fore the trial court was to the contrary This argumentative reference to the record is neither correct nor a good reason for granting certiorar}) bo CO protected by the Due Process Clause requires re- troactive economic legislation to be enacted “at the first possible legislative session,” or not at all? Any such use-it-or-lose-it limitation on a legis- lature’s constitutional power cannot be squared with Carlton’s express holding that “a taxpayer has no vested right in the Internal Revenue Code” protected by the Due Process Clause, 512 U.S. at 33, or recon- ciled with the precedents on which Carlton relied. See, e.g., Millikin v. United States, 283 U.S. 15 (1931) {sustaining statute increasing federal estate tax on gifts made in contemplation of death, applicable with an unlimited period of retroactivity to all gifts made prior to enactment); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) (sustaining federal statute im- posing lability on employers for black lung benefits, applicable with an unlimited period of retroactivity for all prior employees). Decisions of three Courts of Appeals would also have to be disapproved. !® We cannot imagine that the Due Process Clause does not constrain the unlimited retroactive effect of the Court’s decisions,!® yet cabins the consti- 16 fg, Montana Rail Link, Inc v United States, 76 F.3d 991 (9% Cir. 1996) (four to six year period of retroactivity), Honey- well, Inc. v United States, 973 F.2d 638 (8 Cir 1992) (ten vears); Wilgard Realty Co., 127 F.2d 514 (2d Cir.) cert den. 317 U.S. 655 (1942) (15 years); accord, Fife v. CIR, 82 TC 1 (1984) {unlimited penod of retroactivity) 16 Al] the Court’s decisions are “the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of 30 tutional lawmaking power of Congress and the States within a retroactive period no greater than “the first possible legislative session” following the legislature’s identification of the “legitimate legisla- tive purpose” sought to be achieved by retroactive economic legislation. The GTE case was a statutory construction case. Like any statutory construction decision, its result (except with respect to the parties to the final judgment, see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)) and precedential effect could be changed or nullified by a subsequent amendment of the statute construed. The Petitioners never had any interest in the GTE decision protected by the Due Process Clause. “No person has a vested inter- est in any rule of law, entitling him to insist that it shall remain unchanged for his benefit.” New York Central Railroad Co. v. Sarah White, 243 U.S. 188, 198 (1917). “Our cases have clearly established that a person has no property, no vested interest, in any rule of the common law.” Duke Power Co. v. Carolina Envir. Study Group, Inc., 438 U.S. 59, 88 n.32 (1978) (citing many cases). The Petition fails to explain why any of these bedrock precedents needs to be reconsidered. the rule.” Harper v. Virginia Dep't of Taxation, 509 U.S. 86. 97 (1993) lil. The Equal Protection Clause does not re- quire all-or-nothing economic legislation. The Petition’s third reason for granting the writ is that the Court “should establish” that the Equal Protection Clause “precludes a State from treating similarly situated taxpayers differently based solely on the date” their income tax refund claims are filed “and the order in which “those claims [are] processed by a state agency.” Pet. 25. In discussing this third reason, the Petition lumps KRS 141.200(17) and KRS 141.200(18) into one undifferentiated statute the Petition calls “the 2000 Amendments.” This conflation of two indepen- dently operative statutes discombobulates the analy- sis. If either statute is sustained, Petitioners’ refund claims will be precluded, either by the substantive tax law or by state sovereign immunity. If the retroactive prohibition of unitary re- turns under KRS 141.200(18) is upheld, then no Pe- titioner has overpaid its correct tax hability, determined using separate returns. If no tax over- payment has been made, no refund must be paid. If the retroactive revocation of consent to uni- tary return refund suits under KRS 141.200(17) is upheld, then no Petitioner may sue the Common- wealth in a Kentucky court to recover an alleged tax overpayment computed using unitary returns. If state sovereign immunity bars the suit, the merits of the claim are immaterial. We cannot agree with the Petition’s assertion that “this case involves similarly situated taxpayers being treated differently as a result of the 2000 Amendments.” Pet. 26. This assertion mischaracte- rizes both statutes, which apply equally to all corpo- rate taxpayers. The “different treatment” of “similarly si- tuated taxpayers’ decried by the Petition is a func- tion of the effective date of the two statutes, not of any legislative classification among taxpayers. All tax legislation must have an effective date. The Tax Reform Act of 1986 did not violate the Equal Protection Clause by disallowing depreciation deduc- tions generated in years after 1986 as “passive losses,” while permitting depreciation deductions generated in 1986 and prior years to fully shelter or- dinary income, even though the deductions were generated by exactly the same depreciable property on either side of the effective date of the law. If the different treatment of “similarly si- tuated taxpayers’ caused by the effective date of tax legislation violates the Equal Protection Clause, no tax legislation could ever withstand an Equal Protec- tion Clause challenge. The Petition mistakes an effective date for a legislative classification, and a tautology for a consti- tutional issue. The Court long ago determined that a tax statute with a retroactive effective date no more 33 offends the Equal Protection Clause than a tax sta- tute with a prospective effective date. Weich v. Hen- ry, 305 U.S. 134 (1938), held that a 1935 state tax law retroactively taxing dividends received in 1933, was not “a denial of equal protection because retroac- tive. If the 1933 dividends differed sufficiently from other classes of income to admit of the taxation, in that year, lapse of time did not remove that differ- ence so as to compel equality of treatment when the income was taxed at a later date,” 305 U.S. at 144. In other words, if tax legislation would not vi- olate the Equal Protection Clause if made effective prospectively, it does not violate the Equa] Protection Clause if made effective retroactively. There is no Equal Protection issue lurking here. If we focus on KRS 141.200(17) — the retroac- tive revocation of consent to unitary return refund suits — then it appears that Petitioners want the Court to “establish” that the Equal Protection Clause requires a sovereign State to consent to all types of tax refund suits, or to none. But “to the extent [a State] has chosen to consent to certain classes cf suits while maintaining its immunity from others, it has done no more than exercise a privilege of sove- reignty concomitant to its constitutional immunity from suit.” Alden v. Maine, 527 U.S. 706, 758 (1999). Cf. California v. Arizona, 440 U.S. 59, 65 (1979) (“It is clear, of course, that Congress could refuse to waive the Nation's sovereign immunity in all cases or only in some cases.”). If we focus on KRS 141.200(18) — the retroac- tive prohibition on the use of unitary returns then it appears that Petitioners want the Court to “estab- lish” that the Equal Protection Clause requires a re- troactive tax statute to apply to all prior transactions or years, or to none. But the Equal Protection Clause “does not compe! [state] legislatures to prohi- bit all like evils, or none,” U.S. v. Carolene Products Co., 304 U.S. 144, 151 (1938). Grandfather clauses have been routinely upheld against Equal! Protection Clause attacks. E.g., City of New Orleans v. Dukes, 427 U.S. 297 (1976) (upholding prohibition of French Quarter pushcart vendors which exempted vendors in operation for eight years: “rather than proceeding by the immediate and absolute abolition of all push- cart food vendors, the city could rationally choose in- itially to eliminate vendors of more recent vintage. This gradual approach to the problem is not constitu- tionally impermissible.”); United States R.R. Retire- ment Bd. v. Fritz, 449 U.S. 166, 177 (1980) (upholding abolition of double retirement benefits for railroad employees which exempted persons hired prior to specified dute: "because Congress could have eliminated windfall benefits for all classes of em- ployees, it is not constitutionally impermissible for Congress to have drawn lines between groups of em- ployees for the purpose of phasing out those bene- fits’). The Petition offers no reason why these precedents need to be revisited. The Petition fails to make any showing, or even to suggest, that it was unreasonable or irra- tional for the Kentucky General Assembly to have a concluded that the lhon’s share of a_ predicted 200,000,000 revenue loss was attributable to re- troactive unitary returns filed after the date of the GTE decision, and therefore to have made the prohi- bition effective with respect to such returns. That failure is fatal to the Petition’s contention that KRS 141.200(18) suffers some Equal Protection Clause infirmity that needs doctoring on certiorari. CONCLUSION The Petition for a Writ of Certiorari should be denied. Respectfully submitted, Laura M. Ferguson C. Christopher Trower Office of Legal Services Counsel of Record for Revenue 3159 Rilman Rd., N.W. P.O. Box 423 Atlanta, GA 30327-1503 Frankfort, KY 40602 (404) 816-5066 ctrower@electriclaw.com APRIL 23, 2010 Counsel for Respondents --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1618%3A2. Public record. Not legal advice.