197 S.W.3d 557 (Ky.App. 2006), 2004-CA-001940, Davis v. Department of Revenue of Finance and Admin. Cabinet

Docket Nº:2004-CA-001940-MR.
Citation:197 S.W.3d 557
Opinion Judge:MINTON, Judge.
Party Name:George W. DAVIS and Catherine V. Davis, Appellants, v. DEPARTMENT OF REVENUE OF THE FINANCE AND ADMINISTRATION CABINET, Commonwealth of Kentucky (Formerly Commonwealth of Kentucky, Revenue Cabinet) and Commonwealth of Kentucky Finance and Administration Cabinet, Appellees.
Attorney:Irvin D. Foley, David W. Gray, Anthony Raluy, Louisville, KY, John R. Wylie, Chicago, IL, for Appellants. Douglas M. Dowell, Frankfort, KY, for Appellees.
Judge Panel:Before BARBER, MINTON, and TAYLOR, Judges.
Case Date:January 06, 2006
Court:Court of Appeals of Kentucky
 
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197 S.W.3d 557 (Ky.App. 2006)

George W. DAVIS and Catherine V. Davis, Appellants,

v.

DEPARTMENT OF REVENUE OF THE FINANCE AND ADMINISTRATION CABINET, Commonwealth of Kentucky (Formerly Commonwealth of Kentucky, Revenue Cabinet) and Commonwealth of Kentucky Finance and Administration Cabinet, Appellees.

No. 2004-CA-001940-MR.

Court of Appeals of Kentucky

January 6, 2006

Discretionary Review Denied by Supreme Court Aug. 17, 2006.

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[Copyrighted Material Omitted]

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Irvin D. Foley, David W. Gray, Anthony Raluy, Louisville, KY, John R. Wylie, Chicago, IL, for Appellants.

Douglas M. Dowell, Frankfort, KY, for Appellees.

Before BARBER, MINTON, and TAYLOR, Judges.

OPINION

MINTON, Judge.

I. INTRODUCTION.

George and Catherine Davis appeal from the Jefferson Circuit Court's grant of summary judgment in favor of the Department of Revenue of the Finance and Administration Cabinet for the Commonwealth of Kentucky (“the Department" ). Because we find that Kentucky's tax on the income derived from bonds issued outside Kentucky violates the Commerce Clause of the United States Constitution, we vacate and remand.

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II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.

Although the legal theories involved are quite complex,1 the pertinent facts of this case are simple. Kentucky Revised Statute (KRS) 141.020 governs individual state income taxes. Similar provisions exist for the Commonwealth to tax estates, trusts, and fiduciaries,2 as well as corporations.3 KRS 141.020 requires an individual to pay state taxes upon a percentage of that person's net income.4 For individuals, net income is determined by making certain deductions from the individual's adjusted gross income.5 In turn, an individual's adjusted gross income is derived by making certain deductions from a person's gross income “as defined in Section 61 of the Internal Revenue Code." 6In arriving at its definition of gross income, the Internal Revenue Code specifically exempts interest earned on any state or local bond.7 But Kentucky law requires that “interest income derived from obligations of sister states and political subdivisions thereof" is to be included in a person's adjusted gross income.8 The cumulative impact of those various statutes is that Kentucky exempts from taxation interest income derived from bonds issued by the Commonwealth of Kentucky or its subdivisions but requires taxes to be paid on interest income derived from bonds issued by a sister state or its subdivisions.

In April 2003, the Davises filed a class action declaratory judgment complaint alleging that Kentucky's decision to tax the income earned on out-of-state bonds in this manner violates the Commerce Clause of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. To attempt to demonstrate standing, the Davises alleged in their complaint that they were residents of Jefferson County who had paid Kentucky income tax on the income they earned from out-of-state bonds.

In July 2003, before the Davises had filed a motion for class certification, the Department filed a motion for summary judgment arguing that the tax system in issue was constitutional and that, furthermore, the Davises lacked standing to challenge the tax provisions applicable to corporations, estates, and trusts. In August 2004, the Jefferson Circuit Court granted the Department's motion for summary

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judgment on both the constitutionality of the bond taxation system and the question of the Davises' standing. The Davises filed this appeal.

III. ANALYSIS.

The Davises' appeal presents two issues. First, did the trial court correctly grant summary judgment to the Department on the Davises' claim that Kentucky's system of taxing only out-of-state bonds is unconstitutional? Second, did the trial court correctly find that the Davises lacked standing to assert claims on behalf of corporations, trusts, estates, and all other non-individual plaintiffs? Following a recitation of the applicable standards of review, each question will be addressed separately.

A. Standard of Review.

Summary judgment is appropriate only if the Department showed that the Davises “could not prevail under any circumstances." 9 In ruling on a motion for summary judgment, we must view the evidence in the light most favorable to the Davises.10 An appellate court reviewing a grant of summary judgment must determine whether the trial court correctly found that there were no genuine issues of material fact.11 As findings of fact are not at issue, the trial court's decision is entitled to no deference.12

B. Constitutionality of Kentucky's Taxation System.

“The test of the constitutionality of a statute is whether it is unreasonable or arbitrary." 13 A statute is constitutionally valid “if a reasonable, legitimate public purpose for it exists, whether or not we agree with its ‘wisdom or expediency.’ " 14 The Davises' burden is heavy as “[a] strong presumption exists in favor of the constitutionality of a statute." 15

Bearing those principles in mind, we now turn our attention to the Davises' contention that Kentucky's system of taxing only extraterritorial bonds violates the Commerce Clause of the United States Constitution.16 This issue is a matter of first impression in Kentucky.17

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The Commerce Clause simply provides that Congress has the power to “regulate Commerce with foreign Nations, and among the several States [.]" 18 But despite the fact that the Commerce Clause “is phrased merely as a grant of authority to Congress to ‘regulate Commerce ... among the several States,’ Art. I, § 8, cl. 3, it is well established that the Clause also embodies a negative command forbidding the States to discriminate against interstate trade." 19 This “negative" or dormant aspect of the Commerce clause “prohibits economic protectionism-that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." 20 Thus, the “fundamental command" 21 of the Commerce Clause is that “a State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State." 22 As a result, “[s]tate laws discriminating against interstate commerce on their face are ‘virtually per se invalid.’ " 23

Clearly, Kentucky's bond taxation system is facially unconstitutional as it obviously affords more favorable taxation treatment to in-state bonds than it does to extraterritorially issued bonds.24 Thus, Kentucky's bond taxation system may be found to be constitutionally valid only if it falls within an exception to the normal rule requiring laws that violate the Commerce Clause on their face to be stricken.25 So we must evaluate the Department's three main arguments in support of Kentucky's taxation system to determine if the Department has met its burden to show that the taxation system in question is constitutionally permissible.26

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First, one of the Department's main arguments in favor of Kentucky's taxation system is the fact that a similar system has been held to be constitutionally permissible in Ohio. In fact, despite the discriminatory bond taxing system's widespread use and obvious Commerce Clause implications, 27 apparently, only the Ohio courts have been presented with a case challenging it on Commerce Clause grounds.28 The Ohio Court of Appeals ultimately concluded in Shaper that the bond taxation system was constitutionally permissible. But that court failed fully to analyze the issue. Shaper, though containing a well-written preliminary analysis of the Commerce Clause implications of this discriminatory bond taxing system, “made no attempt to explain why ... a tax exemption that discriminates against income earned from out-of-state bonds ... is permissible under the Commerce Clause." 29 Rather, the Shaper court “tersely stat[ed], in effect, that ‘we looked and did not find anything so therefore it must be constitutional.’ " 30 Logic dictates, however, that a potentially problematic and constitutionally infirm statute does not become permissible simply because it has not been previously found to be unconstitutional. Rather, a court faced with a direct constitutional challenge to a statute must engage in a searching inquiry to determine whether a challenged statute can pass constitutional muster.31 Thus, Shaper, though instructive in certain areas, is, in and of itself, insufficient to support the Department's position, meaning that we must examine the Department's other two main arguments.

The Department next argues that the bond taxation system must be found to be constitutional under the Supreme Court's holding in Bonaparte v. Tax Court.32 In Bonaparte, a taxpayer contended that her state of residence was required by the Full Faith and Credit Clause of the United States Constitution 33 to exempt out-of-state bonds from taxation because the issuing state exempted them. The Supreme Court rejected the taxpayer's argument, holding that “no provision of the Constitution of the United States ... prohibit[ed]

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such taxation." 34 However, Bonaparte is ultimately of little value to the case at hand because the Commerce Clause played no role in the Bonaparte court's decision.35 As the case at hand involves a direct challenge under the dormant Commerce Clause and has nothing to do with the Full Faith and Credit Clause, it logically follows that Bonaparte is neither on point nor controlling.

Finally, the Department relies upon the market participant doctrine to save Kentucky's bond taxation system. The market participant theory “recognizes that when a sovereign acts as a consumer or vendor in commerce, its actions as a market participant are distinct from its actions as a market regulator. The Commerce Clause is directed at the state's actions as a market regulator; therefore, [a State's]...

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