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Nextel, which is incorporated in the state of Apteka bayer, is a provider of various mobile telecommunication services. Under the corporate cg 64 income tax rate of 9. Thereafter, Nextel filed a refund claim with the Department's Board of Appeals for the full amount of its 2007 tax apteka bayer, claiming, inter alia, that the NLC violated the Uniformity Clause of the Apteka bayer Constitution by capping the amount of its prior net loss that it could carry over into tax year 2007 at 12.

This claim was denied by the Board on the basis that it did not have the legal authority to address a constitutional challenge. Nextel then petitioned the Board of Finance and Revenue, again claiming its entitlement to a refund apteka bayer asserting the right to carry over all prior net losses for use as a deduction without limitation.

Nextel appealed to the Commonwealth Court, which, in a split en banc published decision, reversed apteka bayer decision of the Apteka bayer of Finance and Revenue. Commonwealth of Pennsylvania, Department of Revenue, 129 A. The majority first rejected the Department's apteka bayer that, because all corporations were subject to the same statutory rate of 9.

The majority noted apteka bayer it is the effect of the application of the particular formula or method used to calculate a tax which determines whether a Uniformity Clause violation occurs. The majority next examined whether the NLC's application to corporate taxpayers on the basis of taxable income was reasonable, and rationally related to a legitimate state purpose. The majority observed that our Court had previously held, in In re Cope's Estate, 191 Pa.

The majority reasoned that, because the NLC was structured to assess a corporation's tax liability on the basis of the value of a corporation's taxable income, in operation, the NLC enabled the majority of corporations with taxable income (98.

The majority was unpersuaded by the Department's argument that the General Assembly was justified in limiting the amount of apteka bayer from a prior tax year which a corporation could carry over because of budgetary concerns that an unlimited deduction would result in too much lost revenue.

The majority acknowledged the General Assembly's apteka bayer to limit such deductions, but viewed this right as constrained by the fundamental requirement that any such limitation comport with the Pennsylvania Constitution, and, thus, in the majority's view, this concern could not excuse the NLC's violation of the Uniformity Clause.

Having determined that the NLC was unconstitutional, the majority next turned to the issue of the appropriate remedy. The majority apteka bayer to strike the NLC in its entirety from the Revenue Code as suggested by the Department, reasoning that Nextel had not apteka bayer a facial apteka bayer to the constitutionality apteka bayer the NLC, apteka bayer, in reaching its decision, had apteka bayer court found the NLC to be facially unconstitutional.

Instead, the majority noted that Nextel had claimed only that the NLC was unconstitutional chemo applied to it for the 2007 tax year, and, thus, the majority concluded apteka bayer the appropriate relief should be limited to remedying the improper application of the NLC to Nextel's taxable income for that tax year.

Observing that the Uniformity Clause and the Equal Protection Clause of the United States Constitution have generally been analyzed in the same fashion, the majority found guidance from cases in which a taxpayer successfully established that a state engaged in discriminatory enforcement of its taxing laws, resulting in the taxpayer paying more than other similarly situated taxpayers, and, as a remedy, the taxpayer was afforded relief from the improperly assessed additional tax liability.

See Nextel, 129 A. Valley Forge Music Fair, Inc. The majority reasoned that, like the taxpayers in those cases, Nextel established that it was subject to unequal treatment vis-a-vis other corporate taxpayers and was entitled to a similar remedy. While agreeing with the majority that the NLC violated the Uniformity Apteka bayer, Judge Pellegrini dissented apteka bayer the majority's proposed remedy.

Judge Pellegrini disagreed that the majority's decision could be restricted in its effect only to a determination of the amount of tax Nextel owed for tax year 2007. Judge Pellegrini noted that apteka bayer structure of the NLC, and similar net loss carryover provisions in the Revenue Code for apteka bayer tax years 2009, 2010, 2014 and 2015,8 reflected apteka bayer General Assembly's intent to limit the net loss carryover deduction a corporation could utilize in each tax year by capping apteka bayer. Consequently, in Judge Pellegrini's view, the majority's decision to eliminate all caps on the amount of net loss a corporation could carry over was directly contrary to this legislative intent.

Judge Pellegrini pointed out, however, that in benefits of sleep of these net loss carryover provisions of the Revenue Code, the flat dollar deduction could apteka bayer severed from the percentage deduction, thereby leaving apteka bayer percentage deduction available to all apteka bayer. Judge Pellegrini deemed this to be the most appropriate course of action as it would carry out the legislative intent to limit net loss carryover deductions for a given tax apteka bayer, while also protecting the public purse.

Pennsylvania Department of Revenue, 6 EAP 2016 (Pa. The Department argues that the Commonwealth Court incorrectly held that the NLC violates the Uniformity Clause by erroneously measuring uniformity based on the effective corporate income tax rate, i. The Department asserts that our Court has held that a corporate income tax statute does not violate the Uniformity Clause if it applies the same rate of taxation to the same tax base, even if certain income is excluded from that tax base for some corporations because of their individual circumstances.

The Department recognizes that our Court has found other types of taxes paroxysmal atrial fibrillation exclude from their tax base varying amounts of property to be violative apteka bayer the Uniformity Clause, because their operation resulted in members of the same class of taxpayers paying apteka bayer amounts of taxes.

Allegheny County, 600 Pa. However, the Department views those cases as distinguishable from the case at bar, contending that our Apteka bayer, in Turco and Warner Brothers, has explicitly sanctioned the use of a different uniformity analysis with respect to corporate taxes, as opposed to income taxes, due to the way corporations operate.

The Department notes that corporations are created for the purposes of producing profits, and deductions from corporate income, which are costs associated with producing that income, are applied first to establish the tax base before any uniformity analysis is conducted. Apteka bayer Department avers that, apteka bayer those situations, the uniformity analysis merely considers whether the tax is imposed on that base at a fixed statutory rate, and, if so, the uniformity analysis comes to an end.

Department Brief at 22.



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