Kinnear v. Hertz Corp., 43811

CourtUnited States State Supreme Court of Washington
Citation545 P.2d 1186,86 Wn.2d 407
Docket NumberNo. 43811,43811
PartiesGeorge KINNEAR, Director, Department of Revenue, State of Washington, and Multistate Tax Commission, Respondents, v. The HERTZ CORPORATION, Appellant.
Decision Date29 January 1976

Page 407

86 Wn.2d 407
545 P.2d 1186
George KINNEAR, Director, Department of Revenue, State of
Washington, and Multistate Tax Commission, Respondents,
No. 43811.
Supreme Court of Washington, En Banc.
Jan. 29, 1976.

[545 P.2d 1187]

Page 408

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Joseph D. Holmes, Jr., Seattle, for appellant.

William D. Dexter, Gen. Counsel, Multistate Tax Commission, Olympia, for respondents.

HUNTER, Associate Justice.

This case concerns the validity of Article 8 of the Multistate Tax Compact, RCW 82.56.010--.050, and the application of its joint audit provisions to corporations, such

Page 409

as the appellant Hertz Corporation, that operate multistate businesses.

Article 8 of the Multistate Tax Compact states:

1. This article shall be in force only in those party states that specifically provide therefor by statute.

2. Any party state or subdivision thereof desiring to make or participate in an audit of any accounts, books, papers, records or other documents may request the commission to perform the audit on its behalf. In responding to the request, the commission shall have access to and may examine, at any reasonable time, such accounts, books, papers, records, and other documents and any relevant property or stock of merchandise. The commission may enter into agreements with party states or their subdivisions for assistance in performance of the audit. The commission shall make charges, to be paid by the state or local government or governments for which it performs the service, for any audits performed by it in order to reimburse itself for the actual costs incurred in making the audit.

3. The commission may require the attendance of any person within the state where it is conducting an audit or part thereof at a time and place fixed by it within such state for the purpose of giving testimony with respect to any account, book, paper, document, other record, property or stock or merchandise being examined in connection with the audit. If the person is not within the jurisdiction he may be required to attend for such purpose at any time and place fixed by the commission within the state of which he is a resident: Provided, That such state has adopted this article.

4. The commission may apply to any court having power to issue compulsory process for orders in aid of its powers and responsibilities pursuant to this article and any and all such courts shall have jurisdiction to issue such orders. Failure of any person to obey any such order shall be punishable as contempt of the issuing court. If the party or subject matter on account of which the commission seeks an order is within the jurisdiction of the court to which application is made, such application may be [545 P.2d 1188] to a court in the state or subdivision on behalf of which the audit is being made or a court in the state in which the object of the order being sought is situated.

Page 410

The provisions of this paragraph apply only to courts in a state that has adopted this article.

5. The commission may decline to perform any audit requested if it finds that its available personnel or other resources are insufficient for the purpose or that, in the terms requested, the audit is impracticable of satisfactory performance. If the commission, on the basis of its experience, has reason to believe that an audit of a particular taxpayer, either at a particular time or on a particular schedule, would be of interest to a number of party states or their subdivisions, it may offer to make the audit or audits, the offer to be contingent on sufficient participation therein as determined by the commission.

6. Information obtained by any audit pursuant to this article shall be confidential and available only for tax purposes to party states, their subdivisions or the United States. Availability of information shall be in accordance with the laws of the states or subdivisions on whose account the commission performs the audit, and only through the appropriate agencies or officers of such states or subdivisions. Nothing in this article shall be construed to require any taxpayer to keep records for any period not otherwise required by law.

7. Other arrangements made or authorized pursuant to law for cooperative audit by or on behalf of the party states or any of their subdivisions are not superseded or invalidated by this article.

8. In no event shall the commission make any charge against a taxpayer for an audit.

9. As used in this article, 'tax,' in addition to the meaning ascribed to it in Article II, means any tax or license fee imposed in whole or in part for revenue purposes.

In 1972, eight states, including Washington, set up the Multistate Tax Commission in accordance with Article 8, and designated it as their lawful agent in the area of sales and use tax audits. In May, 1972, the Commission informed Hertz of this development and demanded that Hertz make available, pursuant to Article 8, the records and other items necessary for the determination of Hertz' sales and use tax liability in the various states. Hertz resisted this demand and in June, 1972, respondents Kinnear and the Multistate Tax Commission commenced an action for declaratory

Page 411

judgment. On January 17, 1975, the trial court granted respondents' motion for summary judgment and thus held that the Multistate Tax Commission has the authority to conduct joint sales and use tax audits for the member states pursuant to Article 8 of the Mulstistate Tax Compact.

Appellant Hertz Corporation appeals from this decision. It initially contends that because the Compact as a whole is unconstitutional and because Article 8 cannot be separated from the Compact, it was therefore error for the trial court to sustain the constitutional validity of Article 8 alone. We reject this contention for two reasons.

First, the specific issue before the trial court was whether or not the Commission has the power and authority to conduct a sales and use tax audit of Hertz pursuant to Article 8. As a result, the only relevant part of the Compact was Article 8, and, by implication, the articles necessary for its implementation, E.g., Article 6, which sets up the Commission. None of the articles of the Compact except Article 8 have any direct connection with the authority of the Commission to conduct interstate audits. For example, Articles 3 and 4 deal with state income taxes and Article 7 is concerned with uniform regulations and forms. Article 8 is determinative as far as the joint audit functions of the Commission[545 P.2d 1189] are concerned. Therefore, the trial court properly limited its consideration to Article 8 and, by implication, the articles that support Article 8.

Second, because the validity of Article 8 could be considered alone under the doctrine of severability, See State v. Anderson, 81 Wash.2d 234, 236, 501 P.2d 184 (1972), we reject appellant's argument that the constitutionality of Article 8 must be determined by looking at the Compact as a whole. The Compact itself indicates an intent to preserve and enforce so much of the Compact as is constitutional. See Multistate Tax Compact, Article 12. 1 Also, the joint

Page 412

audit provisions fulfill the first listed purpose of the Compact contained in Article 1 because when the Commission acts pursuant to Article 8, it directly '(f)acilitate(s) proper determination of state and local tax liability of multistate taxpayers . . .' The legislature undoubtedly would have approved Article 8 and its implementing provisions without regard to the validity of other Compact provisions. Because any potentially invalid Compact provisions would be severable in any event, the trial court did not err in limiting its ruling to Article 8.

Appellant's next contention presents the major issue in this appeal. Appellant contends that the provisions of the Multistate Tax Compact implementing joint...

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5 cases
  • United States Steel Corporation v. Multistate Tax Commission, 76-635
    • United States
    • United States Supreme Court
    • February 21, 1978
    ...A.2d 271 (1962); General Expressways, Inc. v. Iowa Reciprocity Board, 163 N.W.2d 413 (Iowa 1968); Kinnear v. Hertz Corp., 86 Wash.2d 407, 545 P.2d 1186 (1976). See also Henderson v. Delaware River Joint Toll Bridge Comm'n, 362 Pa. 475, 66 A.2d 843 (1949); Opinion of the Justices, 344 Mass. ......
  • American Smelting and Refining Co. v. Idaho State Tax Commission, 12198
    • United States
    • United States State Supreme Court of Idaho
    • March 12, 1979
    ...States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 98 S.Ct. 799, 54 L.Ed.2d 682 (1978); Kinnear v. Hertz Corp., 86 Wash.2d 407, 545 P.2d 1186 The MTC auditor made several significant adjustments in the computation of ASARCO's Idaho tax returns for the years of 1968, 1969 and 1970. T......
  • Hontz v. State, 51075-0
    • United States
    • United States State Supreme Court of Washington
    • February 27, 1986 the constitutionality of a statute may be raised by a motion for summary judgment. See Kinnear v. Hertz Corp., 86 Wash.2d 407, 418, 545 P.2d 1186 (1976). See also Annot., Raising Constitutionality of Legislation by Motion for Summary Judgment, 83 A.L.R.2d 838 (1962). Obviously there is a......
  • United States Steel Corp. v. Multistate Tax Comm., 72 Civ. 3438 (CLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 8, 1976
    ...court of the United States." Article XII states a rule of liberal construction and of severability. In Kinnear v. The Hertz Corporation, 545 P.2d 1186 (Wash.Sup.Ct.1976) (en banc), the court was asked to hold, on grounds substantially similar to those advanced here, that Article VIII of the......
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