Md. State Comptroller of the Treasury v. Wynne

• Decision Date: 17 May 2013
• Docket Number: Sept. Term, 2011.,No. 107,107
• Parties: MARYLAND STATE COMPTROLLER OF the TREASURY v. Brian WYNNE, et ux.
• Court: Maryland Court of Appeals

431 Md. 147

64 A.3d 453

MARYLAND STATE COMPTROLLER OF the TREASURY

v.Brian WYNNE, et ux.

No. 107, Sept. Term, 2011.

Court of Appeals of Maryland.

Jan. 28, 2013.

Opinion on Reconsideration May 17, 2013.

Unconstitutional as Applied

West's Ann.Md.Code, Tax–General, § 10–703(a)Brian L. Oliner, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for appellant.

Christopher T. Handman (Dominic F. Perella and Sean Marotta of Hogan Lovells US LLP, Washington, DC), on brief, for appellees.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

McDONALD, J.

Federal and Maryland law allow for the attribution of corporate income to the corporation's shareholders—without being taxed at the corporate level—in defined circumstances. In particular, the income of a Subchapter S corporation is deemed to “pass through” to the shareholders who are then directly taxed on that income. Some or all of that income may be generated outside the state in which a shareholder resides.

The Maryland income tax law reaches all of the income of a Maryland resident. The State income tax law allows a credit against an individual's State tax liability for income taxes paid to other states based on the income earned in those states. However, that credit takes no account of, and cannot be taken against, the portion of the Maryland income tax known as the “county income tax.”

This case poses the question whether the failure to allow a credit violates the federal Constitution when a portion of a Maryland resident taxpayer's income consists of significant “pass-through” income generated by a Subchapter S corporation in other states, apportioned to the taxpayer, and taxed by the states in which it was generated. The taxpayer has appealed an assessment by the State Comptroller that did not allow a credit against the county income tax portion of the Maryland income tax.

The Comptroller, as he should,¹ defends the tax law as written by the Legislature ² and interpreted by this Court.³ The taxpayers accept that interpretation, but assert that it is wanting when measured against the federal Constitution. They rely on a multitude of cases—virtually all of which are subsequent to the 1975 amendment of the Maryland tax law that uncoupled the credit from the county income tax—that assess state taxes against what has come to be known as the “dormant Commerce Clause.”

Although the Maryland Tax Court ruled in favor of the Comptroller, the Circuit Court for Howard County reversed that decision and held that the statute's failure to allow such a credit violated the dormant Commerce Clause. For the reasons that follow, we find merit in the taxpayers' contentions and affirm the judgment of the Circuit Court.

Background

State Income Taxes

A state may tax the income of its residents, regardless of where that income is earned. A state may also tax a nonresident on income earned within the state. Both of these propositions are consistent with the Due Process Clause of the Fourteenth Amendment. Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 462–63 & n. 11, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995); New York ex rel. Cohn v. Graves, 300 U.S. 308, 312–13, 57 S.Ct. 466, 81 L.Ed. 666 (1937). However, they raise the possibility of what might be termed “double taxation” when both the state of the taxpayer's residence and the state where the income was generated tax the same income. As explained below, the Commerce Clause of the federal Constitution sets certain constraints on this possibility, which the states recognize through the provision of credits for payments of out-of-state taxes.

Maryland Individual Income Tax

State law imposes an income tax on individuals. Maryland Code, Tax–General Article (“TG”) § 10–101 et seq.⁴ It is composed of three parts:

(1) a State income tax (the “State tax”) at a rate set by the Legislature in statute, seeTG § 10–105;

(2) a county income tax that applies only to residents of each county ⁵ (the “county tax”) at a rate set by the county within the range allowed by statute, seeTG §§ 10–103, 10–106; and

(3) a tax on those subject to State income tax but not the county tax (the “Special Non–Resident Tax” or “SNRT”) at a rate equal to the lowest county tax, seeTG § 10–106.1.

Thus, all individual taxpayers are subject to the State tax and either the county tax or the SNRT. These taxes are all collected by the Comptroller; the proceeds of the county tax are distributed to the relevant county.

Credit for Income Taxes Paid to Other States

State law allows for an individual subject to the Maryland income tax to take a credit against the State tax for similar taxes paid to other states. ⁶ In particular:

a resident may claim a credit only against the State income tax for a taxable year in the amount determined under [TG § 10–703(c) ] for State tax on income paid to another state for the year.

TG § 10–703(a). There are various exceptions to this credit, none of which are pertinent to this case.⁷ In general, the credit is designed to ensure that Maryland receives, at a minimum, the Maryland income tax due on the taxpayer's income that is attributable to Maryland, regardless of the another state's method or rate of taxation.⁸Comptroller v. Hickey, 114 Md.App. 388, 391, 689 A.2d 1316 (1997).

No credit is given against the county tax for income taxes paid in other states. TG § 10–703(a); Comptroller v. Blanton, 390 Md. 528, 890 A.2d 279 (2006). As this Court outlined in Blanton, a credit had previously applied with respect to the county tax. See Stern v. Comptroller, 271 Md. 310, 316 A.2d 240 (1974). However, in 1975, the Legislature amended the tax code to eliminate that credit. Chapter 3, Laws of Maryland 1975. ⁹

S Corporations and Income Taxes

A Subchapter S corporation or “S corporation” is a corporation—often a relatively small business—that meets certain requirements set forth in the Internal Revenue Code and makes an election to pass through its income and losses, for federal tax purposes, to its shareholders.¹⁰ Each shareholder reports his or her share of the S corporation's income and losses on their individual tax returns and is assessed federal income tax at the shareholder's individual rate. In that way, the income that the S corporation generates for its owners is taxed at one level—similar to the taxation of a partnership—rather than at two levels (corporate and shareholder) as is otherwise typically the case.¹¹ To accomplish this, the character of any item of income or loss of an S corporation “passes through” to its owners “as if that item were realized directly from the source from which realized by the corporation, or incurred in the same manner as incurred by the corporation.” 26 U.S.C. § 1366(b).

Some states accord similar pass-through treatment to the income of an S corporation; other states do not and require an S corporation to pay income tax directly. The Maryland income tax law incorporates, for the most part, the definitions of income under the Internal Revenue Code. SeeTG §§ 10–101( l ), 10–107, 10–201 et seq. Accordingly, the income of an S corporation “passes through” and is attributed to its shareholders for purposes of the Maryland income tax law. SeeTG § 10–104(6); see alsoTG §§ 10–102.1, 10–304(3).

The Wynnes and Maxim Healthcare Services

The underlying facts are undisputed. The taxpayers are Brian and Karen Wynne (“the Wynnes”), a married couple with five children residing in Howard County. During the 2006 tax year, Brian Wynne was one of seven owners of Maxim Healthcare Services, Inc. (“Maxim”), a company that does a national business providing health care services, and owned 2.4% of its stock. Maxim had made an election under the Internal Revenue Code to be treated as an S corporation. As a result of that election, Maxim's income was “passed through” to its owners for federal income tax purposes, and the Wynnes reported a portion of the corporation's income on their individual federal income tax return.

Because Maryland accords similar pass-through treatment to the income of S corporations, the Wynnes also reported pass-through income of Maxim on their 2006 Maryland tax return. A substantial portion of the pass-through income had been generated in other states and was taxed by those states for the 2006 tax year.

In particular, for the 2006 tax year, Maxim filed state income tax returns in 39 states. Maxim allocated to each shareholder a pro rata share of taxes paid to the various states. The returns did not indicate payments of income taxes to any county or local entity in other states. The Wynnes claimed their pro rata share of such income taxes paid to other states as a credit pursuant to TG § 10–703(c) against their 2006 Maryland individual income tax, reflected on Maryland Form 502.

Assessment and Appeal

The Comptroller made a change in the computation of the local tax owed by the Wynnes and revised the credit for taxes paid to other states on the Wynnes' 2006 Maryland Form 502. The net result was a deficiency in the Maryland taxes paid by the Wynnes, and the Comptroller issued an assessment, which the Wynnes appealed.

On October 6, 2008, the Hearings and Appeals Section of the Comptroller's Office affirmed the assessment, although it revised it slightly.¹² The Wynnes then appealed to the MarylandTax Court where they argued, for the first time, that the limitation of the credit to the State tax for tax payments made to other states discriminated against interstate commerce in violation of the Commerce Clause of the United States Constitution. The Tax Court rejected that argument and affirmed the assessment on December 29, 2009.

The Wynnes then sought judicial review in the Circuit Court for Howard County. Following a hearing on the appeal, the Circuit Court reversed the Tax Court in a decision issued on June 29, 2011. The Circuit Court remanded the case to the Tax Court for further factual development and “an appropriate credit for...