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FTB Riding High After Summary Judgment Win in Harley Commerce Clause Case
A San Diego trial court has ruled in favor of the FTB in what could be one of the biggest cases in the history of California tax litigation (ruling attached). The case of Harley-Davidson v. Franchise Tax Board concerns whether a California law that allows only in-state taxpayers to elect unitary or separate company filing discriminates against multistate businesses, and thus violates the Commerce Clause. The Court of Appeal issued a preliminary ruling in favor of the taxpayer on Commerce Clause issue at Court of Appeal in 2015, but sent it back to the trial court for further development. Despite the preliminary nature of the ruling, the appellate panel appeared to be sending a message to the lower court in support of the taxpayer. But that message was apparently not received. On October 31, 2016, the San Diego County Superior Court held for the FTB a second time. There were other issues raised in the ruling and both parties are expected to appeal. If the taxpayer ultimately prevails, then others who have timely filed claims on this theory would get refunds, if the tax years are now closed for assessment.