How the Massachusetts Supreme Judicial Court Should Apply Wynne

Abstract

In this special report, Knoll and Mason discuss how the Massachusetts Supreme Judicial Court should apply Wynne when it hears on remand First Marblehead v. Commissioner of Revenue. The authors conclude that when it originally heard the case, the Massachusetts court mistakenly considered, as part of its internal consistency analysis, whether Gate Holdings Inc. experienced double state taxation. As developed by the U.S. Supreme Court and most recently applied in Wynne, the internal consistency test is not concerned with actual double taxation that may arise from the interaction of different states’ laws. Rather, the test is designed to determine whether the challenged state’s law alone discriminates against interstate commerce. The authors show how this standard applies to the challenged Massachusetts apportionment rules, and they conclude that in order to ascertain the constitutionality of the challenged Massachusetts law, the Massachusetts court must determine how the other states would tax Gate if the other states applied Massachusetts law for non-domiciled taxpayers.

Keywords: tax discrimination, dormant commerce clause, Wynne, Supreme Court, apportionment formulas, double taxation, state taxes