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ALLIED-SIGNAL, INC., AS SUCCESSOR IN-INTEREST TO
TO BENDIX CORPORATION, PETITIONER v. DIRECTOR,
DIVISION OF TAXATION CERTIORARI TO THE SUPREME COURT OF NEW JERSEY
Argued March 4, 1992 Reargued April 22, 1992
Decided June 15, 1992
In order for a State to tax the multistate income of a nondomiciliary corporation, there must be, inter alia, a minimal connection between the interstate activities and the taxing State, Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U.S. 425, 436 -437, and a rational relation between the income attributed to the taxing State and the intrastate value of the corporate business, id., at 437. Rather than isolating the intrastate income-producing activities from the rest of the business, a State may tax a corporation on an apportioned sum of the corporation's multistate business if the business is unitary. E.g., ASARCO Inc. v. Idaho Tax Comm'n, 458 U.S. 307, 317 . However, a State may not tax the nondomiciliary corporation's income if it is derived from unrelated business activity that constitutes a discrete business enterprise. Exxon Corp. v. Deptartment of Revenue of Wis., 447 U.S. 207, 224 . Petitioner is the successor-in-interest to the Bendix Corporation, a Delaware corporation. In the late 1970's Bendix acquired 20.6% of the stock of ASARCO Inc., a New Jersey corporation, and resold it to ASARCO in 1981, generating a $211.5 million gain. After respondent New Jersey tax official assessed Bendix for taxes on an apportioned amount which included in the base the gain realized from the stock disposition, Bendix sued for a refund in State Tax Court. The parties stipulated that, during the period that Bendix held its investment, it and ASARCO were unrelated business enterprises each of whose activities had nothing to do with the other, and that, although Bendix held two seats on ASARCO's board, it exerted no control over ASARCO. Based on this record, the court held that the assessment was proper, and the Appellate Division and the State Supreme Court both affirmed. The latter court stated that the tests for determining a unitary business are not controlled by the relationship between the taxpayer recipient and the affiliate generator of the income that is the subject of the tax, and concluded that Bendix essentially had a business function of corporate acquisitions and divestitures that was an integral operational activity. [504 U.S. 768, 769]
KENNEDY, J., delivered the opinion of the Court, in which WHITE, STEVENS, SCALIA, and SOUTER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and BLACKMUN and THOMAS, JJ., joined, post, p. 790.
Walter Hellerstein reargued the cause for petitioner. With him on the briefs were Prentiss Willson, Jr., Harry R. Jacobs, Robyn H. Pekala, Andrew L. Frey, Kenneth S. Geller, Charles Rothfeld, and Bennett Boskey. Andrew L. Frey argued the cause for petitioner on the original argument. With him on the briefs were Messrs. Willson, Hellerstein, and Jacobs, Evan M. Tager, and Mr. Boskey.
Mary R. Hamill, Deputy Attorney General of New Jersey, reargued the cause for respondent. With her on the briefs [504 U.S. 768, 771] were Robert J. Del Tufo, Attorney General, Joseph L. Yannotti, Assistant Attorney General, and Sarah T. Darrow, Deputy Attorney General. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for Coca-Cola Co. et al. by Mark L. Evans, James P. Tuite, Alan I. Horowitz, and Anthony F. Shelley; for the Committee on State Taxation by Amy Eisenstadt; for General Motors Corp. et al. by Jerome B. Libin and Kathryn L. Moore; for the Tax Executives Institute, Inc., by Timothy J. McCormally; and for Williams Cos., Inc., by Rose Mary Ham and Henry G. Will.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Timothy G. Laddish, Assistant Attorney General, and Benjamin F. Miller, and by the Attorneys General for their respective States as follows: Charles E. Cole of Alaska, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Robert T. Stephan of Kansas, Michael E. Carpenter of Maine, Marc Racicot of Montana, John P. Arnold of New Hampshire, Nicholas Spaeth of North Dakota, Ernest D. Preate, Jr., of Pennsylvania, R. Paul Van Dam of Utah; Jeffrey L. Amestoy of Vermont, and James E. Doyle of Wisconsin; for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and Thomas A. Barnico, Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, J. Joseph Curran, Attorney General of Maryland, and Mary Sue Terry, Attorney General of Virginia; for the City of New York by O. Peter Sherwood and Edward F. X. Hart; and for the Multistate Tax Commission by Alan H. Friedman, Paull Mines, and Scott D. Smith.
Briefs of amici curiae were filed for the State of Alabama et al. by Mary Sue Terry, Attorney General of Virginia, H. Lane Kneedler, Chief Deputy Attorney General, Gail Starling Marshall, Deputy Attorney General, Gregory E. Lucyk and N. Pendleton Rogers, Senior Assistant Attorneys General, and Barbara H. Vann and Martha B. Brissette, Assistant Attorneys General, Peter W. Low, Jimmy Evans, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Gale Norton, Attorney General of Colorado, John Payton, Corporation Counsel of the District of Columbia, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Elizabeth Barrett-Anderson, Attorney General of Guam, Warren Price III, Attorney General of Hawaii, Linley E. Pearson, Attorney General of Indiana, Chris Gorman, Attorney General of Kentucky, Richard Ieyoub, Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Mike Moore, Attorney General of Mississippi, Marc Racicot, Attorney General of Montana, Don Stenberg, [504 U.S. 768, 772] Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Tom Udall, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Lee Fisher, Attorney General of Ohio, Susan B. Loving, Attorney General of Oklahoma, Mark Barnett, Attorney General of South Dakota, Dan Morales, Attorney General of Texas, Paul Van Dam, Attorney General of Utah, Rosalie S. Ballentine, Attorney General of the Virgin Islands, Ken Eikenberry, Attorney General of Washington, Mario J. Palumbo, Attorney General of West Virginia, James E. Doyle, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming; for the State of Connecticut et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Gerald Langbaum and Andrew H. Baida, Assistant Attorneys General, Richard Blumenthal, Attorney General of Connecticut , Bonnie J. Campbell, Attorney General of Iowa, Scott Harshbarger, Attorney General of Massachusetts, Hubert H. Humphrey III, Attorney General of Minnesota, Ernest D. Preate, Jr., Attorney General of Pennsylvania, and James E. O'Neil, Attorney General of Rhode Island; for American General Corp. by Roy E. Crawford, Russell D. Uzes, and Karen A. Bain; for American Home Products Corp. et al. by William L. Goldman and Anne G. Batter; for Chevron Corp. by Toni Rembe, Jeffrey M. Vesely, and C. Douglas Floyd; and for the Financial Institutions State Tax Coalition by Philip M. Plant and Haskell Edelstein. [504 U.S. 768, 772]
JUSTICE KENNEDY delivered the opinion of the Court.
Among the limitations the Constitution sets on the power of a single State to tax the multistate income of a nondomiciliary corporation are these: There must be "a `minimal connection' between the interstate activities and the taxing State," Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U.S. 425, 436 -437 (1980) (quoting Moorman Mfg. Co. v. Bair, 437 U.S. 267, 273 (1978)), and there must be a rational relation between the income attributed to the taxing State and the intrastate value of the corporate business. 445 U.S., at 437 . Under our precedents, a State need not attempt to isolate the intrastate income-producing activities from the rest of the business; it may tax an apportioned sum of the corporation's multistate business if the business is unitary. E.g., ASARCO Inc. v. Idaho Tax Comm'n, 458 U.S. 307, 317 [504 U.S. 768, 773] (1982). A State may not tax a nondomiciliary corporation's income, however, if it is "derive[d] from `unrelated business activity' which constitutes a `discrete business enterprise.'" Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 224 (1980) (quoting Mobil Oil, supra, at 442, 439). This case presents the questions: (1) whether the unitary business principle remains an appropriate device for ascertaining whether a State has transgressed its constitutional limitations; and if so, (2) whether, under the unitary business principle, the State of New Jersey has the constitutional power to include in petitioner's apportionable tax base certain income that, petitioner maintains, was not generated in the course of its unitary business.
Petitioner Allied-Signal, Inc., is the successor-in-interest to the Bendix Corporation (Bendix). The present dispute concerns Bendix's corporate business tax liability to the State of New Jersey for the fiscal year ending September 30, 1981. Although three items of income were contested earlier, the controversy in this Court involves only one item: the gain of $211.5 million realized by Bendix on the sale of its 20.6% stock interest in ASARCO Inc. (ASARCO). The case was submitted below on stipulated facts, and we begin with a summary.
During the times in question, Bendix was a Delaware corporation with its commercial domicile and corporate headquarters in Michigan. Bendix conducted business in all 50 States and 22 foreign countries. App. 154. Having started business in 1929 as a manufacturer of aviation and automotive parts, from 1970 through 1981, Bendix was organized in four major operating groups: automotive; aerospace/electronics; industrial/energy; and forest products. Id., at 154-155. Each operating group was under separate management, but the chief executive of each group reported to the chairman and chief executive officer of Bendix. Id., at [504 U.S. 768, 774] 155. In this period, Bendix's primary operations in New Jersey were the development and manufacture of aerospace products. Id., at 161.
ASARCO is a New Jersey corporation with its principal offices in New York. It is one of the world's leading producers of nonferrous metals, treating ore taken from its own mines and ore it obtains from others. Id., at 163-164. From December, 1977, through November, 1978, Bendix acquired 20.6% of ASARCO's stock by purchases on the open market. Id., at 165. In the first half of 1981, Bendix sold its stock back to ASARCO, generating a gain of $211.5 million. Id., at 172. The issue before us is whether New Jersey can tax an apportionable part of this income.
Our determination of the question whether the business can be called "unitary," see infra., at 788-789, is all but controlled by the terms of a stipulation between the taxpayer and the State. They stipulated: "During the period that Bendix held its investment in ASARCO, Bendix and ASARCO were unrelated business enterprises each of whose activities had nothing to do with the other." Id., at 169. Furthermore,
After respondent assessed Bendix for taxes on an apportioned amount which included in the base the gain realized upon Bendix's disposition of its ASARCO stock, Bendix sued for a refund in New Jersey Tax Court. The case was decided based upon the stipulated record we have described, and the Tax Court held that the assessment was proper. Bendix Corp. v. Taxation Div. Director, 10 N. J. Tax 46 (1988). The Appellate Division affirmed, Bendix Corp. v. Director, Div. of Taxation, 237 N. J. Super. 328, 568 A. 2d 59 (1989), and so, in turn, did the New Jersey Supreme Court, Bendix Corp. v. Director, Div. of Taxation, 125 N. J. 20, 592 A. 2d 536 (1991).
The New Jersey Supreme Court held it was constitutional to consider the gain realized from the sale of the ASARCO stock as earned in Bendix's unitary business, drawing from our decision in Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 166 (1983), the principle that "the context for determining whether a unitary business exists has, as an overriding consideration, the exchange or transfer of value, which may be evidenced by functional integration, centralization of management, and economies of scale." 125 N. J., at 34, 592 A.2d, at 543-544. The New Jersey Supreme Court went on to state: "The tests for determining a unitary business are not controlled, however, by the relationship between the taxpayer recipient and the affiliate generator of the income that becomes the subject of State tax." Id., at 35, 592 A.2d, at 544. Based upon Bendix documents setting out corporate strategy, the court found that the acquisition and sale of ASARCO "went well beyond . . . passive investments in business enterprises," id., at 36, 592 A.2d at 544, and Bendix "essentially had a business function of corporate acquisitions and divestitures that was an integral operational activity." Ibid. As support for its conclusion that the proceeds from the sale of the ASARCO stock were attributable to a unitary business, the New Jersey Supreme Court relied in part on the fact that Bendix intended to use those [504 U.S. 768, 777] proceeds in what later proved to be an unsuccessful bid to acquire Martin Marietta, a company whose aerospace business, it was hoped, would complement Bendix's aerospace/electronics business. Id., at 36, 592 A.2d, at 545.
We granted certiorari. 502 U.S. 977 (1991). At the initial oral argument in this case, New Jersey advanced the proposition that all income earned by a nondomiciliary corporation could be apportioned by any State in which the corporation does business. To understand better the consequences of this theory, we requested rebriefing and reargument. Our order asked the parties to address three questions:
The principle that a State may not tax value earned outside its borders rests on the fundamental requirement of both the Due Process and Commerce Clauses that there be "some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax." Miller Brothers. Co. v. Maryland, 347 U.S. 340, 344 -345 (1954). The reason the Commerce Clause includes this limit is self-evident: In a Union of 50 States, to permit each State to tax activities outside its borders would have drastic [504 U.S. 768, 778] consequences for the national economy, as businesses could be subjected to severe multiple taxation. But the Due Process Clause also underlies our decisions in this area. Although our modern due process jurisprudence rejects a rigid, formalistic definition of minimum connection, we have not abandoned the requirement that, in the case of a tax on an activity, there must be a connection to the activity itself, rather than a connection only to the actor the State seeks to tax, see Quill Corp. v. North Dakota, ante, at 306-308. The constitutional question in a case such as Quill Corp. is whether the State has the authority to tax the corporation at all. The present inquiry, by contrast, focuses on the guidelines necessary to circumscribe the reach of the State's legitimate power to tax. We are guided by the basic principle that the State's power to tax an individual's or corporation's activities is justified by the "protection, opportunities and benefits" the State confers on those activities. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (1940).
Because of the complications and uncertainties in allocating the income of multistate businesses to the several States, we permit States to tax a corporation on an apportionable share of the multistate business carried on in part in the taxing State. That is the unitary business principle. It is not a novel construct, but one that we approved within a short time after the passage of the Fourteenth Amendment's Due Process Clause. We now give a brief summary of its development.
When States attempted to value railroad or telegraph companies for property tax purposes, they encountered the difficulty that what makes such a business valuable is the enterprise as a whole, rather than the track or wires that happen to be located within a State's borders. The Court held that, consistent with the Due Process Clause, a State could base its tax assessments upon "the proportionate part of the value resulting from the combination of the means by which the business was carried on, a value existing to an [504 U.S. 768, 779] appreciable extent throughout the entire domain of operation." Adams Express Co. v. Ohio State Auditor, 165 U.S. 194, 220 -221 (1897) (citing Western Union Telegraph Co. v. Attorney General of Massachusetts, 125 U.S. 530 (1888)); Massachusetts v. Western Union Telegraph Co., 141 U.S. 40 (1891); Maine v. Grand Trunk R. Co., 142 U.S. 217 (1891); Pittsburgh, C., C., & St.L. R. Co. v. Backus, 154 U.S. 421 (1894); Cleveland, C., C. & St.L. R. Co. v. Backus, 154 U.S. 439 (1894); Western Union Telegraph Co. v. Taggart, 163 U.S. 1 (1896); Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18 (1891).
Adams Express recognized that the principles that permit a State to levy a tax on the capital stock of a railroad, telegraph, or sleeping car company by reference to its unitary business also allow proportional valuation of a unitary business in enterprises of other sorts. As the Court explained: "The physical unity existing in the former is lacking in the latter, but there is the same unity in the use of the entire property for the specific purpose, and there are the same elements of value arising from such use." 165 U.S., at 221 .
The unitary business principle was later permitted for state taxation of corporate income as well as property and capital. Thus, in Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 120 -121 (1920), we explained:
As we indicated in Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U.S., at 442 : "Where the business activities of the dividend payor have nothing to do with the activities of the recipient in the taxing State, due process considerations might well preclude apportionability, because there would be no underlying unitary business." The constitutional question becomes whether the income "derive[s] from `unrelated business activity' which constitutes a `discrete business enterprise.'" Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 224 (1980) (quoting Mobil Oil, supra, at 442, 439).
Although Mobil Oil and Exxon made clear that the unitary business principle limits the States' taxing power, it was not until our decisions in ASARCO Inc. v. Idaho Tax Comm'n, 458 U.S. 307 (1982), and F. W. Woolworth Co. v. Taxation and Revenue Dept. of N.M., 458 U.S. 354 (1982), that we struck down a state attempt to include in the apportionable tax base income not derived from the unitary business. In those cases the States sought to tax unrelated business activity.
The principal question in ASARCO concerned Idaho's attempt to include in the apportionable tax base of ASARCO certain dividends received from, among other companies, the Southern Peru Copper Corp. 458 U.S., at 309 , 320. The analysis is of direct relevance for us, because we have held that, for constitutional purposes, capital gains should be treated as no different from dividends. Id., at 330. The ASARCO in the 1982 case was the same company as the [504 U.S. 768, 781] ASARCO here. It was one of four of Southern Peru's shareholders, owning 51.5 of its stock. Under an agreement with the other shareholders, ASARCO was prevented from dominating Southern Peru's board of directors. ASARCO had the right to appoint 6 of Southern Peru's 13 directors, while 8 votes were required for the passage of any resolution. Southern Peru was in the business of producing unrefined copper (a nonferrous ore), some of which it sold to its shareholders. ASARCO purchased approximately 35% of Southern Peru's output, at average representative trade prices quoted in a trade publication and over which neither Southern Peru nor ASARCO had any control. Id., at 320-322. We concluded that "ASARCO's Idaho silver mining and Southern Peru's autonomous business [were] insufficiently connected to permit the two companies to be classified as a unitary business." Id., at 322.
On the same day we decided ASARCO, we decided Woolworth. In that case, the taxpayer company was domiciled in New York and operated a chain of retail variety stores in the United States. In the company's apportionable state tax base, New Mexico sought to include earnings from four subsidiaries operating in foreign countries. The subsidiaries also engaged in chainstore retailing. Woolworth, supra, at 356-357. We observed that, although the parent company had the potential to operate the subsidiaries as integrated divisions of a single unitary business, that potential was not significant if the subsidiaries in fact comprise discrete business operations. Id., at 362. Following the indicia of a unitary business defined in Mobil Oil, we inquired whether any of the three objective factors were present. The factors were: (1) functional integration; (2) centralization of management; and (3) economies of scale. Woolworth, supra, at 364. We found that, "[e]xcept for the type of occasional oversight - with respect to capital structure, major debt, and dividends - that any parent gives to an investment in a subsidiary," id., at 369, [504 U.S. 768, 782] none of these factors was present. The subsidiaries were found not to be part of a unitary business. Ibid.
Our most recent case applying the unitary business principle was Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159 (1983). The taxpayer there was a vertically integrated corporation which manufactured custom-ordered paperboard packaging. Id., at 171. California sought to tax income it received from its wholly owned and mostly owned foreign subsidiaries, each of which was in the same business as the parent. Id., at 171-172. The foreign subsidiaries were given a fair degree of autonomy: They purchased only 1% of their materials from the parent, and personnel transfers from the parent to the subsidiaries were rare. Id., at 172. We recognized, however:
In the course of our decision in Container Corp., we reaffirmed that the constitutional test focuses on functional integration, centralization of management, and economies of scale. 463 U.S., at 179 (citing Woolworth, supra, at 364; Mobil Oil, supra, at 438). We also reiterated that a unitary business may exist without a flow of goods between the parent and subsidiary if, instead, there is a flow of value between the entities. Id., at 178. The principal virtue of the unitary business principle of taxation is that it does a better job of accounting for "the many subtle and largely unquantifiable transfers of value that take place among the components of a single enterprise" than, for example, geographical or transactional accounting. Id., at 164-165 (citing Mobil Oil, 445 U.S., at 438 -439).
Notwithstanding the Court's long experience in applying the unitary business principle, New Jersey and several amici curiae argue that it is not an appropriate means for distinguishing between income generated within a State and income generated without. New Jersey has not persuaded us to depart from the doctrine of stare decisis by overruling our cases that announce and follow the unitary business standard. In deciding whether to depart from a prior decision, one relevant consideration is whether the decision is "unsound in principle." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985). Another is whether it is "unworkable in practice." Ibid. And, of course, reliance interests are of particular relevance because "[a]dherence to precedent promotes stability, predictability, and respect for judicial authority." Hilton v. South Carolina Public Railways Comm'n, 502 U.S. 197, 202 (1991) (citing Vasquez v. Hillery, 474 U.S. 254, 265 -266 (1986)). See also Quill Corp. v. North Dakota, 504 U.S., at ___ (industry's reliance justifies adherence to precedent); id., at ___ (SCALIA, J., concurring in part and concurring in judgment) (same). Against this background we address the arguments of New Jersey and its amici. [504 U.S. 768, 784]
New Jersey contends that the unitary business principle must be abandoned in its entirety, arguing that a nondomiciliary State should be permitted "to apportion all the income of a separate multistate corporate taxpayer." Brief for Respondent on Reargument 27. According to New Jersey, the unitary business principle does not reflect economic reality, while its proposed theory does. We are not convinced.
New Jersey does not appear to dispute the basic proposition that a State may not tax value earned outside its borders. It contends instead that all income of a corporation doing any business in a State is, by virtue of common ownership, part of the corporation's unitary business, and apportionable. See Tr. of Oral Arg. 25-26 (Apr. 22, 1992). New Jersey's sweeping theory cannot be reconciled with the concept that the Constitution places limits on a State's power to tax value earned outside of its borders. To be sure, our cases give States wide latitude to fashion formulae designed to approximate the in-state portion of value produced by a corporation's truly multistate activity. But that is far removed from New Jersey's theory that any business in the State, no matter how small or unprofitable, subjects all of a corporation's out-of-state income, no matter how discrete, to apportionment.
According to New Jersey, Brief for Respondent on Reargument 11, there is no logical distinction between short-term investment of working capital, which all concede is apportionable, see Reply Brief for Petitioner on Reargument 4-5, and n. 3; Tr. of Oral Arg. 7-8 (Apr. 22, 1992); Container Corp., supra, at 180, n. 19, and all other investments. The same point was advanced by the dissent in ASARCO, 458 U.S., at 337 (opinion of O'CONNOR, J.). New Jersey's basic theory is that multistate corporations like Bendix regard all of their holdings as pools of assets, used for maximum long-term profitability, and that any distinction between operational and investment assets is artificial. We may assume, arguendo, that the managers of Bendix cared most about the [504 U.S. 768, 785] profits entry on a financial statement, but that state of mind sheds little light on the question whether, in pursuing maximum profits, they treated particular intangible assets as serving, on the one hand, an investment function, or, on the other, an operational function. See Container Corp., supra, at 180, n. 19. That is the relevant unitary business inquiry, one which focuses on the objective characteristics of the asset's use and its relation to the taxpayer and its activities within the taxing State. It is an inquiry to which our cases give content, and which is necessary if the limits of the Due Process and Commerce Clauses are to have substance in a modern economy. In short, New Jersey's suggestion is not in accord with the well-established and substantial case law interpreting the Due Process and Commerce Clauses.
Our precedents are workable in practice; indeed, New Jersey conceded as much. See Tr. of Oral Arg. 37-38 (Apr. 22, 1992). If lower courts have reached divergent results in applying the unitary business principle to different factual circumstances, that is because, as we have said, any number of variations on the unitary business theme "are logically consistent with the underlying principles motivating the approach," Container Corp., supra, at 167, and also because the constitutional test is quite fact sensitive.
Indeed, if anything would be unworkable in practice, it would be for us now to abandon our settled jurisprudence defining the limits of state power to tax under the unitary business principle. State legislatures have relied upon our precedents by enacting tax codes which allocate intangible nonbusiness income to the domiciliary State, see App. to Brief for Petitioner on Reargument 1a-7a (collecting statutes). Were we to adopt New Jersey's theory, we would be required either to invalidate those statutes or authorize what would be certain double taxation. And, of course, we would defeat the reliance interest of those corporations that have structured their activities and paid their taxes based upon the well-established rules we here confirm. Difficult [504 U.S. 768, 786] questions respecting the retroactive effect of our decision would also be presented. See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991). New Jersey's proposal would disrupt settled expectations in an area of the law in which the demands of the national economy require stability.
Not willing to go quite so far as New Jersey, some amici curiae urge us to modify, rather than abandon, the unitary business principle. See, e.g., Brief for Multistate Tax Commission as Amicus Curiae; Brief for Multistate Tax Commission as Amicus Curiae on Reargument; Brief for Chevron Corporation as Amicus Curiae. They urge us to hold that the Constitution does not require a unitary business relation between the payor and the payee in order for a State to apportion the income the payee corporation receives from an investment in the payor. Rather, they urge us to adopt as the constitutional test the standard set forth in the business income definition in 1(a) of the Uniform Division of Income for Tax Purposes Act (UDITPA), 7A U.L.A. 331, 336 (1985). Under UDITPA, "business income," which is apportioned, is defined as: "income arising from transactions and activity in the regular course of the taxpayer's trade or business and includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations." UDITPA 1(a). "Non-business income," which is allocated, is defined as "all income other than business income." 1(e).
In the abstract, these definitions may be quite compatible with the unitary business principle. See Container Corp., supra, at 167 (noting that most of the relevant provisions of the California statute under which we sustained the challenged tax there were derived from UDITPA). Furthermore, the unitary business principle is not so inflexible that, as new methods of finance and new forms of business evolve, it cannot be modified or supplemented where appropriate. It does not follow, though, that apportionment of all income [504 U.S. 768, 787] is permitted by the mere fact of corporate presence within the State; and New Jersey offers little more in support of the decision of the State Supreme Court.
We agree that the payee and the payor need not be engaged in the same unitary business as a prerequisite to apportionment in all cases. Container Corp. says as much. What is required instead is that the capital transaction serve an operational, rather than an investment, function. 463 U.S., at 180 , n. 19. Hence, in ASARCO, although we rejected the dissent's factual contention that the stock investments there constituted "interim uses of idle funds `accumulated for the future operation of [the taxpayer's]. . . business [operation],'" we did not dispute the suggestion that had that been so the income would have been apportionable. 458 U.S., at 325 , n. 21.
To be sure, the existence of a unitary relation between the payor and the payee is one means of meeting the constitutional requirement. Thus, in ASARCO and Woolworth, we focused on the question whether there was such a relation. We did not purport, however, to establish a general requirement that there be a unitary relation between the payor and the payee to justify apportionment, nor do we do so today.
It remains the case that, "[i]n order to exclude certain income from the apportionment formula, the company must prove that `the income was earned in the course of activities unrelated to [those carried out in the taxing] State.'" Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 223 (1980) (quoting Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 439 (1980)). The existence of a unitary relation between payee and payor is one justification for apportionment, but not the only one. Hence, for example, a State may include within the apportionable income of a nondomiciliary corporation the interest earned on short-term deposits in a bank located in another State if that income forms part of the working capital of the corporation's unitary business, notwithstanding the absence of a unitary relationship [504 U.S. 768, 788] between the corporation and the bank. That circumstance, of course, is not at all presented here. See infra, this page and 789.
Application of the foregoing principles to the present case yields a clear result: The stipulated factual record now before us presents an even weaker basis for inferring a unitary business than existed in either ASARCO or Woolworth, making this an a fortiori case. There is no serious contention that any of the three factors upon which we focused in Woolworth were present. Functional integration and economies of scale could not exist because, as the parties have stipulated, "Bendix and Asarco were unrelated business enterprises each of whose activities had nothing to do with the other." App. 169. Moreover, because Bendix owned only 20.6% of ASARCO's stock, it did not have the potential to operate ASARCO as an integrated division of a single unitary business, and of course, even potential control is not sufficient. Woolworth, 458 U.S., at 362 . There was no centralization of management.
Furthermore, contrary to the view expressed below by the New Jersey Supreme Court, see 125 N.J., at 36-37, 592 A.2d, at 544-545, the mere fact that an intangible asset was acquired pursuant to a long-term corporate strategy of acquisitions and dispositions does not convert an otherwise passive investment into an integral operational one. Indeed, in Container Corp., we noted the important distinction between a capital transaction that serves an investment function and one that serves an operational function. 463 U.S., at 180 , n. 19 (citing Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 50 -53 (1955)). If that distinction is to retain its vitality, then, as we held in ASARCO, the fact that a transaction was undertaken for a business purpose does not change its character. 458 U.S., at 326 . Idaho had argued that intangible property income could be treated as earned in the course of a unitary business if the intangible property [504 U.S. 768, 789] which produced that income is "`acquired, managed or disposed of for purposes relating or contributing to the taxpayer's business.'" Ibid. (quoting Brief for Appellee 4). In rejecting the argument we observed:
The New Jersey Supreme Court also erred in relying on the fact that Bendix intended to use the proceeds of its gain from the sale of ASARCO to acquire Martin Marietta. Even if we were to assume that Martin Marietta, once acquired, would have been operated as part of Bendix's unitary business, that reveals little about whether ASARCO was run as part of Bendix's unitary business. Nor can it be [504 U.S. 768, 790] maintained that Bendix's shares of ASARCO stock, which it held for over two years, amounted to a short-term investment of working capital analogous to a bank account or certificate of deposit. See Container Corp., 463 U.S., at 180 , n. 19; ASARCO, 458 U.S., at 325 , n. 21.
In sum, the agreed-upon facts make clear that, under our precedents, New Jersey was not permitted to include the gain realized on the sale of Bendix's ASARCO stock in the former's apportionable tax base.
The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, with whom the CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE THOMAS join, dissenting.
In my view, petitioner has not shown by "clear and cogent evidence" that its investment in ASARCO was not operationally related to the aerospace business petitioner conducted in New Jersey. Exxon Corp. v. Department of Revenue of Wis., 447 U.S. 207, 221 (1980) (internal quotation marks omitted). Though I am largely in agreement with the Court's analysis, I part company on the application of it here.
I agree with the Court that we cannot adopt New Jersey's suggestion that the unitary business principle be replaced by a rule allowing a State to tax a proportionate share of all the income generated by any corporation doing business there. See ante, at 12-13. Were we to adopt a rule allowing taxation to depend upon corporate identity alone, as New Jersey suggests, the entire due process inquiry would become fictional, as the identities of corporations would fracture in a corporate shell game to avoid taxation. Under New Jersey's theory, for example, petitioner could avoid having its ASARCO investment taxed in New Jersey simply by establishing a separate subsidiary to hold those earnings outside New Jersey. A constitutional principle meant to ensure [504 U.S. 768, 791] that States tax only business activities they can reasonably claim to have helped support should depend on something more than manipulations of corporate structure. See Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U.S. 425, 440 (1980) ("The form of business organization may have nothing to do with the underlying unity or diversity of business enterprise"); Fargo v. Hart, 193 U.S. 490 (1904) (refusing to find unitary business even though single owner); Adams Express Co. v. Ohio State Auditor, 165 U.S. 194, 222 (1897) (same).
New Jersey suggests that we should presume that all the holdings of a single corporation are mutually interdependent because common ownership will stabilize profits from the commonly held businesses, generating flows of value between them that make them part of a unity. While it may be true that many corporations attempt to diversify their holdings to avoid business cycles, we have refused to presume a flow of value into an in-state business from the potential benefits of being part of a larger multistate, multibusiness corporation. The reason for this is simple: Diversification may benefit the corporation as an entity without necessarily affecting the business activity in the taxing State and without requiring any support from the taxing State. See Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (1940) (State may not tax where it has not "given anything for which it can ask return").
I also agree with the Court that there need not be a unitary relationship between the underlying business of a taxpayer and the companies in which it invests in order for a State to tax investment income. See ante, at 16. "[A]ctive operational control" of the investment income payor by the taxpayer is certainly not required. ASARCO Inc. v. Idaho Tax Comm'n, 458 U.S. 307, 343 (1982) (O'Connor, J., dissenting). Insofar as a requirement that the investment payor and payee be unitary was suggested by our decisions in ASARCO and F. W. Woolworth Co. v. Taxation and Revenue [504 U.S. 768, 792] Dept. of N. M., 458 U.S. 354 (1982), petitioner concedes that was a "doctrinal foot fault." Reply Brief for Petitioner on Reargument 4. Although a unitary relationship between the investment income payor and payee would suffice to relate the investment income to the in-state business, such a connection is not necessary. Taxation of investment income received from a nondomiciliary taxpayer's investment in another corporation requires only that the investment income be sufficiently related to the taxpayer's in-state business, not that the taxpayer's business and the corporation in which it invests be unitary. Only when the State seeks to tax directly the income of a nondomiciliary taxpayer's subsidiary or affiliate through combined reporting, see Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 169 , and n. 7 (1983), must the underlying businesses of the taxpayer and its affiliate or subsidiary be unitary. In any case, the key question for purposes of due process is whether the income that the State seeks to tax is, by the time it is realized, sufficiently related to a unitary business, part of which operates in the taxing State.
In this connection, I agree with the Court that out-of-state investments serving an operational function in the nondomiciliary taxpayer's in-state business are sufficiently related to that business to be taxed. In particular, I agree that "`interim uses of idle funds "accumulated for the future operation of [the taxpayer's] business [operation],"'" may be taxed. Ante, at 16 (quoting ASARCO, supra, at 325, n. 21). The Court, however, leaves "operational function" largely undefined. I presume that the Court's test allows taxation in at least those circumstances in which it is allowed by the Uniform Division of Income for Tax Purposes Act (UDITPA). Ante, at 15. UDITPA counts as apportionable business income from "tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations." UDITPA 1(a), 7A U.L.A. 336 [504 U.S. 768, 793] (1985) (emphasis added). Presumably, investment income serves an operational function if it is, to give only some examples, intended to be used by the time it is realized for making the business' anticipated payments; for expanding or replacing plants and equipment; or for acquiring other unitary businesses that will serve the in-state business as stable sources of supply or demand, or that will generate economies of scale or savings in administration.
In its application of these principles to this case, however, I diverge from the Court's analysis. The Court explains that, while "interest earned on short-term deposits in a bank located in another State" may be taxed "if that income forms part of the working capital of the corporation's unitary business," petitioner's longer term investment in ASARCO may not be taxed. Ante, at 16. The Court finds the investment here not to be operational, because it was not analogous to a "short-term investment of working capital analogous to a bank account or certificate of deposit." Ante, at 790.
Any distinction between short-term and long-term investments cannot be of constitutional dimension. Whether an investment is short-term or long-term, what matters for due process purposes is whether the investment is operationally related to the in-state business. "The interim investment of retained earnings prior to their commitment to a major corporate project . . . merely recapitulates on a grander scale the short-term investment of working capital prior to its commitment to the daily financial needs of the company." ASARCO, supra, at 338 (O'Connor, J., dissenting). I see no distinction relevant to due process between investing in a company in order to build capital to acquire a second company related to the in-state business and, for example, "leas[ing] for a term of years the areas of [the taxpayer's] office buildings into which it intends ultimately to expand," which could hardly be claimed to set up a "separate and unrelated leasing business." Id., at 338, n. 6. [504 U.S. 768, 794]
The link between the ASARCO investment here and the in-state business is closer than the Court suggests. It is not just that the ASARCO investment was made to benefit Bendix as a corporate entity. As the Court points out, any investment a corporation makes is intended to benefit the corporation in general. Ante, at 18. The proper question is, rather: was the income New Jersey seeks to tax intended to be used to benefit a unitary business of which Bendix's New Jersey operations were a part?
Petitioner has not carried the heavy burden of showing by clear and cogent evidence that the capital gains from ASARCO were not operationally related to its instate business. See Container Corp., supra, at 175. Though this case comes to us on a stipulated record, there is no stipulation that the ASARCO capital gains were not intended to be used to benefit a unitary business, part of which operated in New Jersey. Instead, the record suggests that, by the time the capital gains were realized, at least some of the income was intended to be used in the attempt to acquire a corporation also engaged in the aerospace industry. App. 70-71, 81, 193. The acquisition of Martin Marietta, had it succeeded, would have been part of petitioner's unitary aerospace business, part of which operated in New Jersey. Id., at 194. As the New Jersey Supreme Court found: "[T]he purpose of acquiring Martin Marietta was to complement the aerospace-electronics facets of Bendix business, some of which are located in New Jersey. . . . Even though the Martin Marietta takeover never came to fruition, the fact that it served as a goal for part of the capital generated by the sales of ASARCO . . . stock nurtures the premise that Bendix's ingrained policy of acquisitions and divestitures projected the existence of a unitary business."
Bendix Corp. v. Director, Div. of Taxation, 125 N. J. 20, 38, 592 A. 2d 536, 545 (1991). We will,
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