                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA


RB Alden Corp.,                                :
                       Petitioner              :
                                               :   No. 73 F.R. 2011
                v.                             :
                                               :   Argued: February 8, 2017
Commonwealth of Pennsylvania,                  :
                Respondent                     :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge1
                HONORABLE JOSEPH M. COSGROVE, Judge


OPINION BY
JUDGE McCULLOUGH                                              FILED: September 12, 2017


                Presently before this Court are the exceptions filed on behalf of the
Commonwealth of Pennsylvania (Commonwealth) and RB Alden Corp. (Taxpayer)
to this Court’s order filed June 15, 2016, which reversed the order of the Board of
Finance and Revenue (Board) denying Taxpayer’s request for relief and directing the
Department of Revenue (Department) to calculate Taxpayer’s corporate net income
tax (CNIT) without capping the amount that Taxpayer can take on its net loss
carryover deduction.



       1
           This case was decided before Judge Hearthway’s service on the Court ended on September
1, 2017.
               Taxpayer alleged that it owed no Pennsylvania corporate net income tax
on a $29.9 million capital gain profit resulting from the sale of part of a partnership
interest for the following reasons:

                   gain from a sale of the partnership interest is
               “nonbusiness income” under Section 401(3)2.(a)(1)(D) of
               the Tax Reform Code of 1971 (Code),2 not “business
               income” under Section 401(3)2.(a)(1)(A) of the Code;3

                    the gain must be excluded from its apportionable tax
               base under the doctrines of multiformity or unrelated assets;

                     the gross proceeds from the sale of the partnership
               interest should be sourced to New York, the state in which
               it is headquartered, for purposes of calculating the sales
               factor of its corporate net income tax apportionment
               fraction, rather than Pennsylvania, where the property from
               which the sale is derived is located;

                    under the tax benefit rule, it is entitled to exclude
               from business income the gain from the sale because it had
               previously taken a deduction for which it received no
               benefit; and

                    under Nextel Communications of Mid-Atlantic, Inc. v.
               Commonwealth of Pennsylvania, (Pa. Cmwlth. 2015)
               (hereafter Nextel),4 limiting its net loss carryover deduction
               to $2 million violates the Uniformity Clause of the
               Pennsylvania Constitution, PA. CONST. art. VIII, §1.




      2
          Act of March 4, 1971, P.L. 6, No. 2, as amended, 72 P.S. §7401(3)2.(a)(1)(D).

      3
          72 P.S. §7401(3)2.(a)(1)(A).

      4
        We note that the Commonwealth has filed an appeal of Nextel with our Supreme Court,
which remains pending at this time.



                                                 2
               The Board rejected each of Taxpayer’s arguments. In our June 15, 2016,
decision,5 this Court agreed with the Board that the income gained by Taxpayer from
the sale of a portion of the partnership was properly treated as business income
subject to tax in Pennsylvania and declined to adopt the tax benefit rule in the context
of the corporate net income tax. However, we concluded that the $2 million limit on
the amount of the net loss carryover deduction set forth in section
401(3)4.(c)(1)(A)(I) of the Code, 72 P.S. §7401(3)4.(c)(1)(A)(I), violated the
Uniformity Clause of the Pennsylvania Constitution, PA. CONST art. VIII, §1, as it
applied to Taxpayer. Hence, we reversed the Board’s decision and directed the
Department to calculate Taxpayer’s corporate net income tax without capping the
amount that Taxpayer could take on its net loss carryover. Both the Commonwealth
and Taxpayer have now filed exceptions to our decision.


                               Commonwealth’s Exceptions
               The Commonwealth takes exception to this Court’s conclusion that the
$2 million limit on the amount of the net loss carryover deduction set forth in section
401(3)4.(c)(1)(A)(I) of the Code violated the Uniformity Clause of the Pennsylvania
Constitution as it applied to Taxpayer. In this regard, the Commonwealth takes
specific exception to this Court’s findings: that such a limitation created unequal tax
burdens on similarly situated taxpayers; that effective tax rates, rather than statutory
tax rates, must be uniform; that Nextel, or the formula used therein to calculate a
corporation’s effective tax rate, has any application to this case; and that the creation
of any separate classes of corporations with unequal tax burdens resulting from

      5
          R.B. Alden Corporation v. Commonwealth, 142 A.3d 169, 182 (Pa. Cmwlth. 2016).




                                               3
application of the net loss carryover deduction limitation was unreasonable, arbitrary,
or not rationally related to a legitimate state purpose.
             The Commonwealth also takes exception to this Court’s finding that
limiting a tax deduction for sensible budgetary planning is not a legitimate state
purpose sufficient to withstand a uniformity challenge, as well as this Court’s
purported failure to analyze the limitation as an equal protection challenge, under
which the broad legislative goal of assuring stability in state finances is a relevant
consideration.   In any event, the Commonwealth takes further exception to this
Court’s conclusion that Taxpayer overcame its heavy burden in challenging the
constitutionality of the limitation. Finally, the Commonwealth takes exception to this
Court’s remedy that allowed Taxpayer to deduct an unlimited amount of net
operating losses, which reduced Taxpayer’s tax liability to zero and arguably does not
comport with legislative intent.
             As stated in our June 15, 2016 decision, the Commonwealth
acknowledged that “this Court held in Nextel that the Pennsylvania net loss carryover
deduction violates the Uniformity Clause.” R.B. Alden Corporation, 142 A.3d at 184.
While noting that the Commonwealth properly identified the limited application of
Nextel to the taxpayer and tax year at issue in that case, we concluded that nothing
prevented us from engaging in a similar analysis in this case, i.e., whether the net loss
carryover deduction limitation violated the Uniformity Clause as applied to Taxpayer
herein. Ultimately, we concluded that the limitation violated the Uniformity Clause
because it created classes of taxpayers based on their taxable income, i.e., taxpayers
with $2 million or less in taxable income could offset 100% of their taxable income
and would not have to pay any CNIT, whereas taxpayers with more than $2 million in




                                             4
income could only offset a maximum of $2 million and would have to pay CNIT on
the remaining income.
              The Commonwealth presently argues that our reliance on Nextel is
unwarranted, as that case is factually distinguishable from the present case, especially
because Nextel involved a request for a refund, whereas Taxpayer herein is seeking a
reassessment. We fail to see the significance of this differing procedural posture or
how it would alter the constitutional question presented in this case as applied to
Taxpayer. In other words, such a constitutional challenge is not dependent upon or
precluded by the manner in which the underlying case proceeds through the system.
Moreover, we note that the Commonwealth utilizes a significant portion of its brief to
explain why Nextel was wrongly decided. However, the issue herein relates to
Taxpayer, not the taxpayer in Nextel. The Commonwealth had ample opportunity to
present its arguments in Nextel and that matter was finally decided by this Court on
November 23, 2015.6
              The Uniformity Clause states: “All taxes shall be uniform, upon the
same class of subjects, within the territorial limits of the authority levying the tax . . .
.” PA. CONST. art. VIII, §1. As we explained in R.B. Alden Corporation:

              Although the Uniformity Clause does not require absolute
              equality and perfect uniformity in taxation, the legislature
              cannot treat similarly-situated taxpayers differently. Where
              the validity of a tax classification is challenged, “the test is
              whether the classification is based upon some legitimate
              distinction between the classes that provides a non-arbitrary

       6
         The Commonwealth filed exceptions to this Court’s order. However, the Commonwealth
subsequently filed an application to waive briefing and argument on these exceptions. By order
dated December 30, 2015, we granted the Commonwealth’s application, overruled its exceptions,
and entered judgment in favor of Nextel Communications. The Commonwealth then filed an appeal
with our Supreme Court, which remains pending.



                                              5
             and ‘reasonable and just’ basis for the difference in
             treatment.” In other words, “[w]hen there exists no
             legitimate distinction between the classes, and, thus, the tax
             scheme imposes substantially unequal tax burdens upon
             persons otherwise similarly situated, the tax is
             unconstitutional.” Nextel, 129 A.3d at 8 (citations omitted).
142 A.3d at 185.
             Contrary to the Commonwealth’s argument, the net loss carryover
deduction limitation creates separate classes of taxpayers/corporations with unequal
tax burdens, based solely on income. Pennsylvania law clearly provides that the
amount of a taxpayer’s income is not a reasonable distinction on which to treat
taxpayers differently. Our Supreme Court established the same long ago in In re
Cope’s Estate, 43 A. 79 (Pa. 1899), wherein it stated, “[t]he money value of any
given kind of property, such as that specified in the act can never be made a legal
basis of subdivision or classification for the purpose of imposing unequal burdens on
either of such classes, or wholly exempting either of them from any burden.” Id. at
82.   While the Commonwealth asserts that In re Cope’s Estate applies only to
property tax, we cannot agree. Indeed, our Supreme Court recently discussed this
“basic principle” from In re Cope’s Estate in Mt. Airy #1 LLC v. Pennsylvania
Department of Revenue, 154 A.3d 268, 275 (Pa. 2016), which involved a challenge to
the constitutionality of Section 1403(c) of the Pennsylvania Race Horse Development
and Gaming Act, 4 Pa.C.S. §1403(c) (declaring the municipal portion of the local
share assessment levied against all licensed casinos’ gross slot machine revenue to be
violative of the Uniformity Clause).
             Further, in this regard, we disagree with the Commonwealth insofar as it
argues that the effective tax rate analysis set forth in Nextel was incorrect and that the
net loss carryover deduction itself, rather than the limitation, created the non-
uniformity. The non-uniformity in this case stems from the $2 million limitation


                                            6
imposed upon Taxpayer by section 401(3)4.(c)(1)(A)(I) of the Code.7                              Any
corporation with Pennsylvania-apportioned income in excess of $2 million and with
net operating losses in excess of said income, was limited to a net loss carryover
deduction of $2 million. A corporation in such a position was required to pay CNIT
on any income exceeding that amount, whereas a similarly-situated corporation, but
with less than $2 million in income, would not have to pay any CNIT. The only
distinguishing factor between these two corporations is the amount of taxable income
in the applicable year.
               Additionally, the fact that the net loss carryover deduction can be carried
over for a period of 20 years effectively redefines the measuring period for
determining tax liability. The limitation creates non-uniformity within this redefined
measuring period, as a corporation to which the limitation applies is taxed at a higher
effective rate within the redefined period. Practically speaking, the fault is the same
as the one our Supreme Court found in Mt. Airy #1 LLC, i.e., any casino outside of
Philadelphia to which the municipal portion of the local share assessment applied was
effectively taxed at a higher rate, resulting in a lack of uniformity.
                Finally, the Commonwealth seeks clarification from this Court
regarding a footnote in our June 15, 2016 decision stating, “[a]lthough the

       7
          The Commonwealth asserts that, should this Court uphold its earlier finding that the
limitation was unconstitutional, we must strike the entire net loss carryover deduction. Because the
limitation, not the deduction itself, creates the non-uniformity herein, we see no reason to strike the
entire deduction. Additionally, the Commonwealth asserts, relying on Mt. Airy #1 LLC, that any
relief due Taxpayer should be prospective. However, the Commonwealth failed to raise this issue
in the underlying matter and, hence, it is waived. Commonwealth v. Boros, 620 A.2d 1139, 1143
(Pa. 1993) (failure to raise issue below constitutes a waiver of that issue for purposes of appeal).
Moreover, even if not waived, prospective relief would be meaningless in this case. Here, we are
concerned with a single tax year, 2006, and the net loss carryover deduction limitation as applied to
Taxpayer in that year. Taxpayer has not had taxable net operating income since 2006 and is
unlikely to have any in the future against which a net loss carryover deduction could apply.



                                                  7
Commonwealth is correct in that ACF Industries[8] analyzed a statute that is not
relevant to this case and that it was decided before the Code was even enacted, this
Court, in Glatfelter I[9] and the Supreme Court in Glatfelter II,[10] used ACF Industries
in determining whether the multiformity or unrelated assets doctrines apply, even
after the definition of ‘business income’ was amended in 2001.”                RB Alden
Corporation, 142 A.3d at 178 n.9. The Commonwealth asserts that, while this Court
rejected Taxpayer’s argument that it engaged in a separate and distinct business that
did not contribute to its Pennsylvania business, said footnote created confusion
because the multiformity and unrelated assets doctrines are no longer viable and have
been superseded by business or non-business income analysis, which was used in
Glatfelter I and Glatfelter II.          However, the footnote accurately reflects the
dispositions by this Court and our Supreme Court in those cases, both of which
discussed the ACF Industries case.
               For the reasons stated above, the Commonwealth’s exceptions are
overruled.


                                   Taxpayer’s Exceptions
               Taxpayer’s exceptions relate to this Court’s discussion regarding
application of the tax benefit rule in our June 15, 2016 decision. Taxpayer first takes
exception to the statement in the Majority decision that “[n]othing in the Stipulation


      8
          Commonwealth v. ACF Industries, Inc., 271 A.2d 273 (Pa. 1970).

      9
        Glatfelter Pulpwood Co. v. Commonwealth, 19 A.3d 572 (Pa. Cmwlth. 2011), aff’d, 61
A.3d 993 (Pa. 2013).

      10
           Glatfelter Pulpwood Co. v. Commonwealth, 61 A.3d 993 (Pa. 2013).



                                                8
states that Taxpayer attempted to take a tax deduction in a prior year without tax
consequences; nor have any tax returns been filed for the prior years.” R.B. Alden
Corporation, 142 A.3d at 182. Taxpayer asserts that such a statement is directly
contrary to the Joint Stipulation of Facts (Joint Stipulation) dated August 28, 2015,
wherein the parties agreed that:

             28. For each tax year beginning in 1989 through and
             including Fiscal Year 2006, the Partnership incurred and
             reported a taxable loss from operations, which losses were
             passed through pro-rata to [Taxpayer]. [Taxpayer] filed
             federal income tax returns for each tax year from 1989
             through and including Fiscal Year 2006 and reported
             thereon its share of the Partnership’s operational losses.

                                         ...

             37. [Taxpayer] filed Pennsylvania Corporate Tax Reports
             for each tax year from 1989 through and including Fiscal
             Year 2006 and reported thereon its share of the
             Partnership’s operational losses. [Taxpayer] did not file an
             income tax return in any state other than Pennsylvania and
             never apportioned any of its Pennsylvania taxable income
             or loss for any tax year.

             38. [Taxpayer] was unable to use its share of the
             Partnership’s losses to reduce Pennsylvania taxable income
             during the tax years prior to Fiscal Year 2006 as neither
             [Taxpayer] nor the Partnership generated any Pennsylvania
             taxable income during those years.
(Taxpayer’s Exceptions, ¶1; Joint Stipulation, ¶¶28, 37, 38.)
             Taxpayer next takes exception to the Majority’s conclusion that the
deductions that it seeks to add back to basis under the tax benefit rule “are in no way
related to the capital gain from the sale of the Partnership interest.” (Taxpayer’s
Exceptions, ¶2.)    Taxpayer argues that this conclusion is factually and legally



                                           9
incorrect. More specifically, Taxpayer asserts that “the reduced basis, and the capital
gain calculated using the reduced basis, were directly connected with – indeed solely
attributable to – the prior loss deductions. The failure to add back the losses to basis
was improper because the losses never gave Taxpayer any tax benefit when they
were incurred.” (Taxpayer’s Exceptions, ¶2.)
             Taxpayer’s third and final exception is to the Majority’s conclusion that
Congress’ 1984 amendment to section 111 of the Internal Revenue Code (IRC), 26
U.S.C. §111, which addresses the tax benefit rule, did not modify the narrower
Treasury Regulation §1.111-1(a) adopted many years earlier. The Majority opinion
states, “courts are required to afford an agency discretion to interpret a provision of
the agency’s organic or enabling statute unless it is inconsistent with the provisions of
that statute . . . .” R.B. Alden Corporation, 142 A.3d at 183. Taxpayer stresses that
statutes take precedence over regulations. Taxpayer notes that Treasury Regulation
§1.111-1(a) provides, “Section 111 [excludes amounts] from gross income to the
extent of the ‘recovery exclusion’ . . . but not including deductions with respect to
depreciation, depletion, amortization, or amortizable bond premiums.” 26 C.F.R.
§1.111-1(a) (emphasis added).
             Taxpayer also notes that the 1984 amendment to section 111 of the IRC
expanded the section’s application from “recovery exclusion” to “Recovery of tax
benefit items,” and section 111(a) was broadened to provide that “[g]ross income
does not include income attributable to the recovery during the taxable year of any
amount deducted in any prior taxable year to the extent such amount did not reduce
the amount of tax imposed by this chapter.” 26 U.S.C. §111(a) (emphasis added).
Taxpayer states that the amendment removed prior language limiting recovery to bad




                                           10
debts, prior taxes, and delinquency amounts, and that, at present, there is no limitation
on the types of recovery covered by the statute.
             However, in light of our decision to overrule the Commonwealth’s
exceptions to our June 15, 2016 decision, concluding that, consistent with Nextel, the
$2 million net loss carryover deduction limitation set forth in section
401(3)4.(c)(1)(A)(I) of the Code violates the Uniformity Clause of the Pennsylvania
Constitution as it applies to Taxpayer, any exceptions of Taxpayer to this Court’s
analysis of the tax benefit rule are hereby rendered moot. Further, because the
limitation is unconstitutional as applied to Taxpayer, Taxpayer would be entitled to a
100% offset of its corporate net income tax, thereby resulting in Taxpayer owing zero
tax to the Commonwealth for Fiscal Year 2006 (the same result Taxpayer sought
through application of the tax benefit rule).




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


RB Alden Corp.,                        :
                  Petitioner           :
                                       :    No. 73 F.R. 2011
            v.                         :
                                       :
Commonwealth of Pennsylvania,          :
                Respondent             :


                                   ORDER


            AND NOW, this 12th day of September, 2017, the exceptions filed on
behalf of the Commonwealth of Pennsylvania are overruled. The exceptions filed
on behalf of RB Alden Corp. are dismissed as moot.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
