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That's the Way the Cookie Crumbles: Nestle Loses Its Battle on the Constitutionality of the Texas Franchise Tax

The Texas Supreme Court upheld the imposition of the franchise tax (often referred to as the Texas Margins Tax) under both the Texas and United States Constitutions. In Re Nestle USA, Inc., No. 12-0518 (Tex. 2012) (opinion delivered Oct. 19,

October 22, 2012

The Texas Supreme Court upheld the imposition of the franchise tax (often referred to as the Texas Margins Tax) under both the Texas and United States Constitutions. In Re Nestle USA, Inc., No. 12-0518 (Tex. 2012) (opinion delivered Oct. 19, 2012).

Nestle argued that the imposition of the franchise tax was unconstitutional, both facially and as applied.  In Texas, the franchise tax rate is 1%, except for those taxpayers “primarily engaged in a wholesale or retail trade,” for whom the rate is 0.5%. Nestle was engaged only in wholesale and retailing activities in Texas, but because it was engaged in manufacturing outside of Texas, it was subject to the 1% franchise tax rate rather than the lower wholesale/retail rate. Specifically, Nestle argued that the differential rate based on the wholesale/retail classification was unconstitutional under the Equal and Uniform Clause of the Texas Constitution and the Equal Protection, Due Process, and Commerce Clauses of the United States Constitution because the tax lacked a reasonable relationship with actual business in Texas and because of the fact that the tax is higher for those with a manufacturing business outside of Texas.

First, the court turned to the argument that the franchise tax was unconstitutional under the Equal and Uniform Clause of the Texas Constitution, which states that “taxation shall be equal and uniform.” The court noted that the franchise tax is a tax on the value of the privilege of doing business in this state. Thus, the court argued that the value of a privilege is not merely based on the fact that it involves activity but also from its inherent “nature, pursuits, and rewards.” The court also noted that taxing distinct classifications is proper and, in fact, necessary to create equality and uniformity in taxes as long as the classifications are “related to differences in doing business that affect the value of the privilege.” The court then held that the structure of the franchise tax and the classifications therein were reasonably related to the value of conducting business in Texas and therefore did not violate the Equal and Uniform Clause.

Second, the court turned to, and quickly dismissed, all of Nestle’s federal constitutional arguments. The court held that since the Equal Protection Clause is less strict than the Equal and Uniform Clause, the Equal Protection challenge would necessarily fail. The court then held that the franchise tax did not violate due process because the franchise tax “is obviously payment for the privilege of carrying on business in Texas” and out-of-state activity, such as Nestle’s manufacturing, necessarily increases the value of carrying on business in Texas. Finally, the court held that the differential tax rate did not violate the Commerce Clause because the differential rate is based only on “differences between the nature of their businesses, not from the location of their activities.” Because all manufacturers would be taxed at the same rate regardless of location, the franchise tax did not discriminate against interstate commerce.

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