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Efiled: Apr 11 2008 9:Lla Filing ID 19365764 Case From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial EFiled: Apr 11 2008 9:llA for other related documents, please email [email protected] Filing ID 19365764 Case Number 109,2008 IN THE SUPREME COURT OF THE STATE OF DELAWARE DIRECTOR OF REVENUE ) 1 Appellant, 1 Respondent Below 1 1 v. 1 No. 109, 2008 1 THE DIAL CORPORATION, 1 1 Appellee, 1 Petitioner Below 1 ON APPEAL FROM THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY DIRECTOR OF REVENUE'S OPENZNG BRIEF John S. McDaniel Deputy Attorney General Del. Bar ID 2477 Department of Justice Carve1 State Office Building, C600 820 N. French Street Wilmington, DE 19801 (302) 577-8842 April 11, 2008 From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial for other related documents, please email [email protected] TABLE OF CONTENTS PAGE TABLE OF CITATIONS ............................................ii NATURE AND STAGE OF THE PROCEEDINGS ............................ 1 SmMARY OF THE ARGUMENT ........................................ 3 STATEMENT OF FACTS ............................................. 4 ARGUMENT I. IMPOSITION OF THE WHOLESALERS' GROSS RECEIPTS TAX ON PROCEEDS OF DIAL'S SALES OF GOODS PHYSICALLY DELIVERED IN DELAWARE BY DIAL, TITLE TO WHICH PASSED OUTSIDE OF THE STATE, SATISFIES THE REQUIREMENTS OF THE COMMERCE CLAUSE ......................................8 CONCLUSION ..................................................... 34 Dial Corporation v Director of Revenue, Del . Super., C .A. No. 06C-05-014, Toliver, J. (January 30, 2008) From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial for other related documents, please email [email protected] TABLE OF CITATIONS COMSTXTUTXOMS PAGE Constitution of the United States Of America, Art. I, 58 ...................................passim Constitution of the United States Of America, Amend. XIV .......................................16 CASES Acadia Brandywine Tom Center, LLC v. New Castle County, 879 A. 2d 923 (Del. 2005) .............. .8 Axmco v. Hardesty, 467 U.S. 678 (1984). ...................... .31 Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948) . .22 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977) ..................................passim Container Corporation of America v. Franchise Tax Board, 463 U. S. 159 (1983) ......... .17, 18 Ford Motor Company v. City of Seattle, 156 P.3d 185 (Wash. 2007) cert. denied - U.S. -, 2008 WL 423568 (Feb. 19, 2008) ....................... 25, 26 Frank1in Fibre -Lami tex Corporation v. Director of Revenue, 505 A.2d 1296 (Del. Super Ct. 1985) ............................ 29, 30, 31 Goldberg v. Sweet, 488 U.S. 252 (1989) .................... 17, 25 Lehman Brothers Bank, FSB v. State Bank Commissioner, 937 A.2d 95 (Del. 2007) ............ .8, 15, 17 McLeod v. J.E. Dilworth Co., 322 U.S. 327 (1944) ......22, 26, 31 Moorman Manufacturing Company v. Bair, 437 U.S. 267 (1978) ..................................passim Norton v. Department of Revenue, 340 U.S. 534 (1951). ........ .31 Oklahoma Tax Commission v. Jefferson Lines, Inc. 514 U.S. 175 (1995) ................................17, 22 From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial for other related documents, please email [email protected] CASES PAGE Quill Corporation v . North Dakota. 504 U.S. 298 (1992)......................................................... 16 Saudi Refining. Inc . v . Director of Revenue. 715 A.2d 89 (Del. Super . Ct . 1998) ................... 24, 25 Standard Pressed Steel Co . v . Washington Department of Revenue. 419 U.S. 560 (1975).................................. 2 23 Tax Appeal of Baker & Taylor. Inc . v . Kawafuchi. 82 P.3d 804 (Haw. 2004) ..........................26. 27. 28 Trinova Corporati on v . Michigan Department Treasury. 498 U.S. 358 (1991)........................ 18. 20 Tyler Pipe Industries. Inc . v . Washington State Department of Revenue. 483 U.S. 232 (1987)...... .22. 23. 26 Tyler Pipe Industries. Inc . v . State of Washington Department of Revenue. 715 P.2d 123 (Wash. (1986)... .22. 23 STATUTES 6 Del . C . 82-106 .............................................. 30 6 Del . C . 12-319 ............................................... 12 6 Del . C. 12-401 ........................................ 2 32 8 Del C.. ch.5 ..................................................7 30 Del . C . S333 ................................................ 1 30 Del . C . 2544 ................................................1 30 Del . C.. ch . 19 ............................................. 7 30 Del . C . 52901 ..........................................passim 30 Del . C . 82902 ..........................................passim iii From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial for other related documents, please email [email protected] STATUTES PAGE 30 Del . C . 82910 ............................................... 1 64 Del . Laws. c . 374 (July 17. 1984) .......................... 30 75 Del . Laws. c . 199 (July 19. 2005) .......................... 11 Haw . Rev. Stat . 8237-1 ......................................... 6 Haw . Rev . Stat . 5237-13(2)............................... .27. 28 Wash . Rev. Code S82.04.010 ..................................... 6 Wash . Rev. Code 582.04.040{1)................................. 24 RULES Delaware Supreme Court Rule 14 ................................. 1 From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial for other related documents, please email [email protected] NATURE AND STAGE OF THE PROCEEDINGS This is an appeal by the Director of Revenue (the "Director") from the Superior Court's grant of a Motion for Summary Judgment made by The Dial Corporation ("Dial") and the denial of a Cross Motion for Summary Judgment made by the Director. The case began with Dial's claim for refund of the Delaware Wholesale Merchants' License Tax, 30 Del. C. 882901 - 2910 (hereafter, the "Wholesalers' Gross Receipts Tax"), in the amount of $41,380.00 paid between January 2004 and September 2005, which the Director denied. Appendix to Director's Opening Brief (hereafter "App.") A15-23, A25. Dial timely filed a protest of the denial with the Director in accordance with 30 Del. C. S542, which the Director denied. App. A27-34, A36-40. Dial next filed a petition for review of this denial in accordance with 30 Del. C. 5544 with the Tax Appeal Board (the "Board"). That proceeding was removed to the Superior dourt pursuant to 30 Del. C. 8333 by order of the Board. App. A42. The Superior Court decided the case on cross motions for summary judgment, based on the parties' Stipulation of Facts (the "Stipulation" or "Stip.") and after oral argument, in an opinion and order originally dated January 29, 2008 and amended on January 30 2008 (the "Opinion" or "Opin) attached hereto in accordance with the Court's Rule 14(b) (vii) . In the Opinion, From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial for other related documents, please email [email protected] the court granted Dial's motion for summary judgment and denied the Director's cross motion, holding that the Wholesalers' Gross Receipts Tax, as applied to Dial on the stipulated facts, violated the Commerce Clause of the Constitution of the United States. The Director appeals from the grant of the Dial's motion for summary judgment and the denial of the Director's motion for summary judgment. The Director filed a Notice of Appeal with this Court on February 27, 2008. The Court ordered that the Director's Opening Brief was due on or before April 14, 2008. This is the Director's Opening Brief. From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial for other related documents, please email [email protected] SUMMARY OF THE ARGTJbIENT 1.The Wholesalers' Gross Receipts Tax is a tax on the \ activity of wholesaling, not a sales or transactional tax. 2. Dial conducted part of its national wholesaling activity in Delaware both before and after title to the goods at issue passed upon delivery to Dial's common carrier outside of the state. 3. Fair apportionment under Complete Auto Transit and its progeny is the sole issue in the case, and both the U.S. Supreme Court and state supreme courts have found Delaware's method of dividing the tax base by taxing gross receipts from sales of goods physically delivered in this State to be fairly apportioned. From the state tax library of Reed Smith LLP www.reedsmith.com/DEdial for other related documents, please email [email protected] STATEMENT OF FACTS Dial is a Delaware corporation headquartered in Arizona that manufactures and sells consumer products such as soap. Opin. p.2; App. A5, A7 (Stip. 1 12-13). All of its manufacturing activity takes place outside of Delaware. Opin. p.3; App. A7 (Stip. 612, 16). Dial generally ships products to its customers from distribution center warehouses located outside of Delaware, or, in some cases, directly from its or its contract manufacturersr ("co-packersJu) plants outside of Delaware. Opin. p. 4; App. A7-8 (Stip. 14- 18). Under its general sale terms, Dial ships to its customers F.O.B. shipping point, and title to and risk of loss for the goods shipped pass to the purchaser upon delivery to a common carrier. Opin. p. 4; App. A8, A44 (Stip. 119 & Exhibit ("Stip. Exh.") F to Stip. ("DELIVERY-FREIGHT PREPAIDU)). Prices include the cost of shipment to the customer, and Dial chooses and pays the common carrier for delivery of the goods to the purchaser. Opin. p. 5, 6; App. A8, A44 (Stip, 1121
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