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The Limits of Fair Apportionment: How Fair is Fair Enough?
The article was authored by David J. Shipley and is 42 pages in length. It was originally published in the State and Local Tax Lawyer 2007 Symposium Edition.
In the field of state and local taxation, no other clause of -- or silence within -- the Constitution has as much significance as the Commerce Clause. It yields the fundamental limitations on state taxing power with which professionals in our field grapple daily -- nexus, discrimination, and fair apportionment to name a few. This compilation of articles and essays presents analyses by preeminent authorities of not only the intricacies of these "day-to-day" issues, but also the theoretical underpinnings of Commerce Clause jurisprudence. The day-long program from which these pieces are adapted was held at Georgetown University Law Center on May 16th, 2007.
For information on the State and Local Tax Lawyer 2007 Symposium Edition, click here.
Article Excerpt
State tax apportionment, by its nature, is a rough approximation of a corporation's income earned in a particular jurisdiction. Any state tax apportionment formula will be inaccurate -- either overstating or understating the portion of a corporation's income that should be subject to tax. As a result, every apportionment formula will, to some degree, be unfair. However, the U.S. Constitution does not protect against trivial unfairness in apportionment. Rather, the constitutional inquiry is how much unfairness is too much. The answer to that question lies in understanding the historical development of the constitutional theories underlying the fair apportionment concept.
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