Date: 09-18-2018

Case Style: Harley-Davidson, Inc. v. Franchise Tax Board

Case Number: D071669

Judge: Benke

Court: California Court of Appeals Fourth Appellate District Division One on appeal from the Superior Court, San Diego County

Plaintiff's Attorney: Amy L. Silverstein and Robert T. Petraglia

Defendant's Attorney: Xavier Becerra, Edward C. DuMont, Diane Shaw, Aimee Feinberg, Stephen Lew and Tim Nader

Description: Plaintiff Harley Davidson and its subsidiaries (Harley-Davidson) form a multistate
enterprise with numerous functionally integrated subsidiary corporations. It contends
that defendant California Franchise Tax Board's (Board) tax scheme violates the
commerce clause of the federal Constitution (U.S. Const., art. I, § 8, cl. 3), claiming that
it burdens interstate enterprises by providing a benefit to intrastate enterprises not
available to interstate enterprises. An intrastate unitary business may use either
combined or separate accounting to report its income to the Board, whereas HarleyDavidson
and other interstate unitary businesses must use the combined reporting
method, without the option of separate accounting for each related entity. The trial court
granted summary judgment for Harley-Davidson. It found that whether or not the state's
tax law unduly burdened interstate commerce, the state had a legitimate reason for
treating in-state and out-of-state unitary businesses differently that could not be served by
reasonable nondiscriminatory alternatives — to accurately measure, apportion and tax all
revenue acquired in California by an interstate unitary business.
After independent review, we also find that there is a legitimate state interest to
require combined reporting of taxable income of interstate unitary businesses, to
accurately measure and tax all income attributable to California, that outweighs any
possible discriminatory effect. We affirm the judgment of the trial court.
BACKGROUND
Harley-Davidson has a nation-wide business. The Harley-Davidson enterprise is
comprised of commonly owned and functionally integrated businesses, each of which is
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dependent on or contributes to the operation of the entire business enterprise of the group.
Such an enterprise is called a unitary business.
Harley-Davidson filed an action for a tax refund, raising several issues, including a
challenge under the commerce clause to the Board's requirement that interstate unitary
businesses must use the combined method of reporting income and apportioning taxes,
while intrastate unitary businesses may use either the combined method or the separate
accounting method. The sole remaining issue is Harley-Davidson's claim that this
differential treatment harms the flow of interstate commerce by providing a direct
commercial advantage to intrastate unitary companies. It asserts that the federal
commerce clause was violated by Revenue and Taxation Code provisions that allow
intrastate unitary businesses to choose whether to compute their tax using the combined
reporting method or the separate accounting method, but require interstate unitary
businesses to compute their tax using only the combined reporting method.
In an earlier appeal, this court reversed an order sustaining the Board's demurrer to
this issue in the complaint. (Harley-Davidson (2015) 237 Cal.App.4th 193, 203–208,
(Harley I).) We found that this provision of California's tax system treats intrastate and
interstate unitary businesses differently, but we made no finding on whether that
differential treatment was discriminatory. (Id. at pp. 203, 206.) We found only that
Harley-Davidson adequately alleged that this differential treatment was discriminatory
because it benefitted intrastate unitary businesses and burdened interstate unitary
businesses. (Id. at p. 206.) A demurrer must be denied where the plaintiff has alleged
facts that, if true, would state a valid cause of action. (Evans v. City of Berkeley (2006)
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38 Cal.4th 1, 6 [alleged facts deemed true]; Perez v. Golden Empire Transit Dist. (2012)
209 Cal.App.4th 1228, 1235 (Perez) [standard of review of order sustaining demurrer].)
On remand, the Board and Harley-Davidson filed cross-motions for summary
judgment. The trial court granted summary judgment for the Board. The trial court
found that California tax law treats in-state and out-of-state unitary businesses differently
because it permits in-state businesses to choose between the separate entity or combined
reporting method, while out-of-state businesses have no choice but must use the
combined method of accounting. Differential treatment is discriminatory within the
commerce clause context, however, if the different treatment provides a direct benefit to
in-state entities or increases the tax burden on interstate entities. The trial court
concluded that there were triable issues of fact on whether a discriminatory effect exists.
It found that even if the law burdened interstate companies, the state had a legitimate
interest in "requiring this form of combined reporting to ensure that all business income
from interstate business is accurately accounted for [and] that it is fairly apportioned.
The state has a valid interest in preventing the manipulation and hiding of taxable
income. [Citation.] [¶] There does not appear to be a reasonable nondiscriminatory
alternative that would adequately serve the state's interest. The alternative of allowing
separate reporting for out of state business would potentially omit income of certain
entities doing business outside the state."
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We review this grant of summary judgment de novo and independently decide if
the findings of undisputed facts warrant judgment for the moving party as a matter of
law.1 (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).)
DISCUSSION
I. Combined Reporting Aggregates the Income of an Interstate Unitary Business and
Permits California to Tax a Proportionate Amount of the Income Attributable to
California
A state may tax the value that a corporation earns within its state borders. But in
an enterprise such as Harley-Davidson, that consists of a number of commonly owned
and functionally controlled entities, it is difficult to assess the value earned throughout
the entire interconnected enterprise that is attributable to the state. The unitary business
principle was developed to permit the states "to tax a corporation on an apportionable
share of the multistate business carried on in part in the taxing [s]tate." (Allied-Signal v.
Director, Div. of Taxation (1992) 504 U.S. 768, 778 (Allied-Signal) [history of unitary
business principle].) It protects an enterprise from being taxed for value not attributable
to the state, while allowing the state to collect its fair share of taxes attributable to the

1 In a motion filed December 1, 2017, the Board requested we take judicial notice of
the Judgment and Statement of Decision after trial in Abercrombie & Fitch v. Franchise
Tax Board, Fresno Superior Court No. 12CECG03408, now on appeal in the Fifth
District Court of Appeal, case No. F074873. That court's ruling was not before the trial
court when it rendered its decision in this case. It is not part of the record on appeal.
That case involved a different plaintiff, and the decision came after a trial of the facts.
The record before the Fresno Superior Court was different from the record that is before
us in this appeal.
The decision of the Fresno Superior Court in a different case is not relevant to our
appellate review of the summary judgment before us. The Board's request for judicial
notice is therefore denied.
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enterprise's connection to the state. (Ibid.) Under this system, the interstate unitary
business must calculate the income of all of its functionally integrated components, and
apportion to the state that income proportionate to the business conducted within the
state. (Container Corp. of America v. Franchise Tax Board (1983) 463 U.S. 159, 165
(Container Corp.).) A proportionate share of the income that is attributable to California
activities is determined by an apportionment formula that uses objective measures of the
corporation's activity within California — payroll, property, and sales. (Id. at p. 170.)
The United States Supreme Court has long upheld the constitutionality of this combined
reporting/formula apportionment method under the commerce and due process clauses.
(Id. at p. 165, and cases cited therein, dating back to 1920; Allied-Signal, supra, 504 U.S.
at pp. 778–779 [history of unitary business principle].)
California's combined reporting method has been found constitutional under the
commerce and due process clauses for interstate unitary companies and for foreign
unitary companies. (Barclays Bank PLC v. Franchise Tax Bd. of Cal. (1994) 512 U.S.
298, 311–312 (Barclays); Container Corp., supra, 463 U.S. at pp. 164–165; Butler
Brothers v. McColgan (1942) 315 U.S. 501, 506–507 [no due process violation].)
In Barclays, a foreign international corporation claimed that California's
worldwide combined reporting scheme was discriminatory, due to the compliance costs
and administrative burdens it imposed on foreign unitary enterprises. (Barclays, supra,
512 U.S. at pp. 312–313.) The Supreme Court found that California's tax scheme did not
systematically overtax foreign corporations. (Id. at p. 314.) Barclays complained of the
compliance and administrative burdens it bore in preparing the combined accounting and
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reporting required by California. (Id. at pp. 312–314.) But regulations that have only
incidental effects on interstate commerce are valid. (Oregon Waste Systems v. Dept. of
Environmental Quality (1994) 511 U.S. 93, 98 (Oregon Waste).) Compliance burdens
are generally incidental, although they can violate the commerce clause if
disproportionately imposed on out-of-state enterprises. The compliance and
administrative burdens were not excessive in Barclays. (Barclays, at p. 313.)
Some unitary businesses conduct business solely within California. All income is
earned within California and all is subject to California tax. These intrastate unitary
businesses have the option of computing their California tax liability by either the
separate accounting method and the combined reporting method. " '[S]eparate
accounting treats each corporate entity discretely for the purpose of determining income
tax liability.' " (Harley I, supra, 237 Cal.App.4th at p. 199, quoting Barclays, supra, 512
U.S. at p. 305.) The combined method of reporting aggregates the entire amount of
business income of all corporations in the unitary group. While intrastate businesses
would not have to apportion value earned in California, as all value is earned in
California, combined reporting may permit the enterprise to offset the tax gains of one
entity by the losses of another entity, and to shift tax liability, and other assorted benefits.
Historically, the individual entities of a unified business that operated solely
within California were required to separately account for their taxable income, because
there was no need for aggregation and apportionment. Some of these intrastate
interdependent corporations sued the Board, contending that they were discriminated
against under the equal protection clause because the intrastate businesses were not
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permitted to file under the combined method of reporting used by interstate unitary
businesses. (Handlery v. Franchise Tax Board (1972) 26 Cal.App.3d 970, 982–983
(Handlery).) The intrastate taxpayers contended that they were denied the benefits of
combined reporting that were available to interstate unitary businesses. Specifically, the
intrastate taxpayers alleged that they were denied the benefits of offsetting losses against
gains between different entities. (Id. at p. 984.) The appellate court found no violation of
equal protection because the state tax laws had a reasonable basis. (Id. at p. 983.) It
explained, "the 'formula' apportionment of unitary business income has not only been
found to be constitutionally permissible, but that it is often the only reasonable and
practical manner in which a state may levy and collect taxes to which it is constitutionally
entitled. It might be described as a sort of rule of necessity, having its origin in the
accommodation of a state's constitutional right to tax income derived from within the
state, to constitutional due process of law and interstate commerce provisions." (Id. at
p. 974.) It found no violation of equal protection, because "the formula-unitary business
reporting method has but one purpose—determination of the income from interstate
operations properly allocable to California. Where intrastate operations only are
concerned such intrastate income is readily discernible from the books of the enterprise,
without resort to any formula or other device." (Id. at p. 979.) Interstate and intrastate
unitary businesses were not similarly situated for purposes of the equal protection law.
(Id. at p. 983.)
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In response to Handlery, the Legislature in 1980 amended the Revenue and
Taxation Code to permit intrastate unitary groups to choose either the combined reporting
or the separate accounting methods. (Harley I, supra, 237 Cal.App.4th at p. 200.)
Interstate unitary groups do not have that choice. Harley-Davidson contends that this
differential treatment of interstate and intrastate unitary enterprises violates the commerce
clause.
II. The Commerce Clause Prohibits Economic Protectionism and Interference with
Interstate Commerce
We provided an overview of the commerce clause in Harley I:
"The commerce clause provides that '[t]he Congress shall have
Power . . . [¶] [t]o regulate Commerce . . . among the several States.'
(U.S. Const., art. I, § 8, cl. 3.) 'Though phrased as a grant of
regulatory power to Congress, the [c]lause has long been understood
to have a "negative" aspect that denies the [s]tates the power
unjustifiably to discriminate against or burden the interstate flow of
articles of commerce.' (Oregon Waste, supra, 511 U.S. at p. 98.) In
this negative, or dormant, aspect, 'the [c]ommerce [c]lause "prohibits
economic protectionism—that is, 'regulatory measures designed to
benefit in[-]state economic interests by burdening out-of-state
competitors.' " ' (Fulton Corp. v. Faulkner (1996) 516 U.S. 325, 330
(Fulton); Bacchus Imports, LTD v. Dias (1984) 468 U.S. 263, 268
['A cardinal rule of [c]ommerce [c]lause jurisprudence is that "[no]
[s]tate, consistent with the [c]ommerce [c]lause, may 'impose a tax
which discriminates against interstate commerce . . . by providing a
direct commercial advantage to local business' " '].) . . .
" '[T]he first step in analyzing any law subject to judicial scrutiny
under the negative [c]ommerce [c]lause is to determine whether it
"regulates evenhandedly with only 'incidental' effects on interstate
commerce, or discriminates against interstate commerce." ' "
(Oregon Waste, supra, 511 U.S. at p. 99.) In this context,
' "discrimination" simply means differential treatment of in-state and
out-of-state economic interests that benefits the former and burdens
the latter." ' (Ibid.) 'By contrast, nondiscriminatory regulations that
have only incidental effects on interstate commerce are valid unless
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"the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits. . . ." '
" 'If a restriction on commerce is discriminatory, it is virtually per se
invalid,' (Oregon Waste, supra, 511 U.S. at p. 99) unless the
'justifications for discriminatory restrictions on commerce pass the
"strictest scrutiny" ' (id. at p. 101; see South Central Bell Telephone
Co. v. Alabama (1999) 526 U.S. 160, 169 (South Central Bell)).
Accordingly, a discriminatory regulation must be invalidated unless
its proponent can ' "show that it advances a legitimate local purpose
that cannot be adequately served by reasonable nondiscriminatory
alternatives." ' (Oregon Waste, at pp. 100–101.)"
(Harley I, supra, 237 Cal.App.4th at pp. 201–202, fns. omitted.)
III. Harley I Did Not Rule on the Discriminatory Effect of California's Reporting
Requirements
Harley-Davidson contends that we held in Harley I that the difference in
permissible methods of reporting facially discriminated against interstate unitary
enterprises. We could not have made such a decision on the bare allegations of the
complaint, without determining the veracity of the allegations. We held only that
"Harley-Davidson has sufficiently alleged for purposes of surviving the Board's demurrer
that the differential treatment of intrastate and interstate unitary businesses is
discriminatory within the meaning ascribed by commerce clause precedent." (Harley I,
supra, 237 Cal.App.4th at p. 207.) Harley-Davidson's complaint alleged that the option
to use the separate reporting method benefitted intrastate unitary taxpayers by allowing
"the ability to more efficiently use credits and net operating losses, reduced tax burden,
increased administrative ease and lower compliance costs in preparing returns. . . ."
(Harley I, at pp. 200–201.) In Harley I, we reversed the order sustaining the demurrer
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because if these facts were true, they stated a valid cause of action to be determined in the
trial court. (See Perez, supra, 209 Cal.App.4th at p. 1235.)
IV. Because Harley-Davidson Has Made a Facial Challenge, It Need Not Specify the
Amount of the Excess Burden on It
We reject the Board's contention that Harley-Davidson must show the amount of
taxes it overpaid as a result of the alleged discriminatory statutes. We agree with HarleyDavidson
that it need not show that Harley-Davidson, itself, was burdened, because it
raises a facial challenge to the statutes. (Tobe v. Santa Ana (1995) 9 Cal.4th 1069, 1084.)
But it must show that the different choice of reporting methods has an actual
discriminatory effect on interstate commerce. "To support a determination of facial
unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by
suggesting that in some future hypothetical situation constitutional problems may
possibly arise as to the particular application of the statute . . . . Rather, petitioners must
demonstrate that the act's provisions inevitably pose a present total and fatal conflict with
applicable constitutional prohibitions." (Ibid., citations and internal quotation marks
omitted.) It is disputed here whether the reporting requirements of California's tax law
facially show a factual dispute about an inevitable, present, total and fatal conflict with
the commerce clause.
V. There Are Triable Issues of Fact About the Existence of Discriminatory Effect
The gravamen of discriminatory action is "differential treatment of in-state and
out-of-state economic interests that benefits the former and burdens the latter." (Oregon
Waste, supra, 511 U.S. at p. 99.) Discrimination that puts a higher tax burden on in-state
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businesses than on interstate businesses does not violate the commerce clause because it
does not discourage commerce among the states. (See Direct Marketing Association v.
Brohl (10th Cir. 2016) 814 F.3d 1129, 1143 [complementary tax].) Negative incidental
effects such as compliance costs and administrative burdens are not generally
discriminatory. (Barclays, supra, 512 U.S. at pp. 313–314.)
The trial court made no factual finding here about the discriminatory effect of the
different reporting requirements of California's tax law. The trial court concluded that
there were triable issues of fact on this question. We decline the Board's invitation to
make a factual determination on direct appeal of the possibility of discriminatory effect
from the disparate reporting choices.
VI. Legitimate State Interests Justify the Disparate Reporting Rule
A tax scheme that burdens the flow of interstate commerce must generally be
invalidated unless "it advances a legitimate local purpose that cannot be adequately
served by reasonable nondiscriminatory alternatives." (Oregon Waste, supra, 511 U.S. at
pp. 100–101.)
The trial court found that the state had a legitimate interest in requiring combined
reporting for interstate unitary businesses in order to accurately measure and fairly
apportion the income from all functionally integrated entities, and to prevent the
manipulation and hiding of taxable income. (Barclays, supra, 512 U.S. at p. 303; see
also Container Corp., supra, 463 U.S. at p. 164.) The court in Container Corp. explained
that separate accounting "often ignores or captures inadequately the many subtle and
largely unquantifiable transfers of value that take place among the components of a single
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enterprise." (Container Corp., at pp. 164–165.) While these compelling reasons were
stated in the context of a due process claim, they provide the same rational basis for
supporting the state's legitimate interest in requiring combined reporting when it is
challenged as discriminatory under the commerce clause. Harley-Davidson has, in any
event, agreed that these are "worthy goals."
Harley-Davidson contends, however, that there are reasonable nondiscriminatory
alternatives to the disparate reporting system. But separate accounting cannot be
extended to interstate corporations because it "ignores or captures inadequately" the
transfers of value that take place among the many entities that that can make up a unitary
enterprise, and can lead to "the manipulation and hiding of taxable income." (Barclays,
supra, 512 U.S. at p. 303; Container Corp., supra, 463 U.S. at p. 164.) Harley-Davidson
has not pointed us to facts in the record that cast doubt on these findings. (See Lewis v.
County of Sacramento (2001) 93 Cal.App.4th 107, 116 (Lewis) [appellants bear burden to
support claims by citations to record and to authority].) Harley-Davidson argues that the
Board has "tools at [its] disposal" to seek out all the "subtle and largely unquantifiable
transfers of value" among the entities of a unitary business (Container Corp., at pp. 164–
165) and to prevent manipulation. This basic ability to capture fraud is not broadly
effective in the way that the combined reporting method prevents and limits the potential
fraud and manipulation facing the Board. As the Supreme Court has repeatedly held, the
combined reporting / apportionment method is a rule of necessity that conforms to and
fulfills "two imperatives: the States' wide authority to devise formulae for an accurate
assessment of a corporation's intrastate value or income; and the necessary limit on the
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States' authority to tax value or income that cannot in fairness be attributed to the
taxpayer's activities within the State." (Allied Signal, supra, 504 U.S. at p. 780; see also
Handlery, supra, 26 Cal.App.3d at p. 974 ["[T]he 'formula' apportionment of unitary
business income has not only been found to be constitutionally permissible, but . . . it is
often the only reasonable and practical manner in which a state may levy and collect
taxes to which it is constitutionally entitled"].)
Nor has Harley-Davidson convinced us that prohibiting intrastate unitary
companies from choosing either the solitary accounting or the combined method would
be a reasonable alternative. There are no undisputed facts to support this suggestion. (See
Lewis, supra, 93 Cal.App.4th at p. 116.) All income earned by an intrastate unitary
business is taxed by California, without apportionment. Intrastate unitary businesses
have less opportunity for hiding and manipulating taxable income among separate
entities, because all of their income is earned and value added within the state's borders,
subject to general state corporate regulation. Intrastate entities are not similarly situated
to interstate entities for purposes of filing taxes. Harley-Davidson has given us no facts
supporting its claim that requiring intrastate unitary businesses to always file by the
combined reporting method would be a reasonable nondiscriminatory alternative.

Outcome: We affirm the judgment of the trial court.

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Defendant's Experts:

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