Fordham Law Review Volume 36 Issue 3 Article 1 1968 The Development of a Congressional Program Dealing with State Taxation of Interstate Commerce Emanuel Celler Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Emanuel Celler, The Development of a Congressional Program Dealing with State Taxation of Interstate Commerce, 36 Fordham L. Rev. 385 (1968). Available at: https://ir.lawnet.fordham.edu/flr/vol36/iss3/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Development of a Congressional Program Dealing with State Taxation of Interstate Commerce Cover Page Footnote United States Representative from Tenth District of New York; member of the New York Bar. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol36/iss3/1 THE DEVELOPMENT OF A CONGRESSIONAL PROGRAM DEALING WITH STATE TAXATION OF INTERSTATE COMMERCE EMANUEL CELLER* I. BACKGROUND pROMINENT on the list of great legacies which modern America re- ceived from the original framers of the Constitution is the principle of a national common market. It is this principle-the principle of the Com- merce Clause-that has bound our states together in the economic union which is so essential to their political union. At the same time, this prin- ciple has also played a major role in the phenomenal development of our American economy. Yet, essential as the common market principle has been for both our political and economic development, the very nature of our federal system has precluded us from attaining a completely open market and necessitated that some proper balance be struck between the need for the free movement of goods and persons across state lines and the needs of the states for revenue. From the enactment of the Constitution until 1959 the entire responsi- bility for reconciling conflicts between the tax policies of the states and the national interest in the free flow of commerce was shouldered by the courts. Congress itself enacted no statutes to give the courts guidance. As a result, a vast body of decisional law provided the only standards for determining whether any particular state or local levy was violative of the national principle of free trade among the states. However, most of the cases which arose were so diversified and of such peculiarly local significance that they did not generate strong political interest on a national level. While Congress remained silent, significant trends developed which resulted in a balkanization of the economy. As each state reached far- ther and farther beyond its own borders to tax more and more com- panies, the burdens on the courts became unmanageable, and it became clear that the judicial branch of the government was inadequate to balance state revenue requirements with the national need for an open market. Indeed, the Supreme Court itself came to recognize its own in- adequacy in this area. Thus, in recent years several members of the Court with such diverse philosophies as Justices Jackson,1 Rutledge,2 Black,3 * United States Representative from Tenth District of New York; member of the New York Bar. 1. Northwest Airlines, Inc. v. Minnesota, 322 U.. 292, 306-07 (1944) (concurring opinion). 2. International Harvester Co. v. Department of Treasury, 322 US. 340, 360 (1944) FORDHAM LAW REVIEW [Vol. 36 Frankfurter,4 Douglas5 and Clark' have all subscribed to this view and have either directly or implicitly called upon Congress to act. Essentially, the inadequacy of the judicial process to accommodate both the competing demands of the states for revenues and the national need for a free flow of commerce is an inherent one. It arises from the fact that the Court can deal only with individual cases and is substan- tially handicapped by its inability to explore fully the national impact of a broad conglomeration of levies imposed on interstate companies by all fifty states and literally thousands of local governments. The late Justice Frankfurter has described these built-in limitations of the Court in the following terms: At best, this Court can only act negatively; it can determine whether a specific state tax is imposed in violation of the Commerce Clause. Such decisions must neces- sarily depend on the application of rough and ready legal concepts. We cannot make a detailed inquiry into the incidence of diverse economic burdens in order to deter- mine the extent to which such burdens conflict with the necessities of national economic life. Neither can we devise appropriate standards for dividing up national revenue on the basis of more or less abstract principles of constitutional law, which cannot be responsive to the subtleties of the interrelated economies of Nation and State. The problem calls for solution by devising a congressional policy. Congress alone can provide for a full and thorough canvassing of the multitudinous and intricate factors which compose the problem of the taxing freedom of the States and the needed limits on such state taxing power. 7 Faced with its own inherent limitations, the Court generally main- tained a permissive attitude toward state levies on interstate com- merce--of ten declining in the absence of federal legislation to invalidate state revenue measuresY Encouraged by the Court's permissive posture, the state tax administrators asserted broader and broader jurisdictional claims over interstate commerce, so that by 1959 it was clear that Con- (concurring opinion); General Trading Co. v. State Tax Comm'n, 322 U.S. 335, 360 (1944) (concurring opinion); McLeod v. J.E. Dilworth Co., 322 U.S. 327, 360 (1944) (dis- senting opinion). 3. McCarroll v. Dixie Greyhound Lines, Inc., 309 U.S. 176, 188-89 (1940) (dissenting opinion); Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 448-55 (1939) (dissent- ing opinion); J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 327 (1938) (dissenting opinion). 4. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 475-77 (1959) (dissenting opinion); Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944); McCarroll v. Dixie Greyhound Lines, Inc., 309 U.S. 176, at 188-89 (1940) (dissenting opinion). 5. McCarroll v. Dixie Greyhound Lines, Inc., 309 U.S. 176, 188-89 (1940) (dissenting opinion). 6. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457-58 (1959). 7. Id. at 476-77 (dissenting opinion) (footnote omitted). 8. For discussion of the judicial approach see Federal Limitation on State Taxation of Interstate Business, 75 Harv. L. Rev. 953, 956-72 (1962). 9. But see National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753 (1967). 1968] INTERSTATE TAXATION gress would have to act if the rapidly growing trend toward a balkanized domestic economy were to be reversed. In that year, in two companion cases, Northwestern States Portland Cement Co. v. Minnesota, and Williams v. Stockham Valves & Fittings, Inc.,'0 the Supreme Court decided that in the absence of federal legislation a company could be required to pay a state income tax, even though it was engaged exclusively in interstate commerce in the taxing state. Prior to this decision the view had been widely held by the business community that a company could not be taxed by a state unless it engaged at least to some extent in intrastate commerce within the taxing state." The reaction of the business community to the Nortlrwestern decision was extremely sharp. Small and moderate-size businesses in particular became gravely concerned with the prospect of having to comply with diverse, complex and overlapping income tax laws which would be beyond their capacity to handle. Not only was the business community fearful of future liabilities, but it was also confronted with the specter of assessment for countless numbers of back years as well. Having failed to file tax returns in the past in the belief that no liability had existed, generally they could not rely on statutes of limitations to bar assessments. In the Northwestern case, for example, the taxpayer was held liable for back taxes covering a period of some sixteen years. Under all of these circumstances, the business community regarded it as imperative for Congress to act.'2 The reaction by Congress to the Northwestern decision was swift. Within weeks after the decision, hearings were held by the Senate Select Committee on Small Business.'3 Meanwhile, both the House Judiciary Committee' 4 and the Senate Finance Committee 3 reported out bills designed to provide "stopgap" relief while Congress could develop a more comprehensive program based on more detailed information. The outgrowth of the bills was Public Law 86-272,"o which became effective in September of 1959. Public Law 86-272 had a two-fold significance. First, the statute precluded a state or subdivision from imposing an income tax in situations in which the company's only activities in the state were limited to the solicitations of orders by salesmen or the making of sales through inde- pendent contractors. Second, both the House and the Senate viewed 10. 358 U.S. 450 (1959). 11. H.R. Rep. No. 1480, 88th Cong., 2d Sess. 7 (1964). 12. Id. 13. Hearings on State Taxation of Interstate Commerce Before the Senate Select Com- mittee on Small Business, 86th Cong., 1st Sess. (1959). 14. H.RJ. Res. No. 936, 86th Cong., 1st Sess. (1959), reporting H.J. Res. 450. 15. S. Rep. No. 658, 86th Cong., 1st Sess.