Petition for Writ of Mandamus - Filed - Supreme Court of Texas

More documents

Recommendations

Info

"Attorney General"), are sued in their respective official capacities and service of process may be made on Defendants in Travis County, Texas. The Comptroller may be served at 111 E. 17th Street, Austin, Texas 78774. The Attorney General may be served at 300 W. 15th Street, Austin, Texas 78701. III. JURISDICTION AND VENUE 4. This suit is brought pursuant to the terms, provisions, and requirements of Texas Tax Code Section 112.051 et seq. to recover from the Comptroller $8,682,998.99 in franchise tax that Plaintiff paid under protest for report year 2012 (the "Protest Payment"). The Protest Payment was electronically delivered to the Comptroller on May 11, 2012. On the same day, Plaintiff hand-delivered to the Comptroller a letter explaining the basis for the protest ("Protest Letter"), as required by Texas Tax Code Section 112.051. A file-stamped copy of the Protest Letter is attached as Exhibit B. A copy of the Comptroller's receipt for the Protest Payment and Protest Letter is attached as Exhibit C. This Original Petition is filed before the ninety-first (91) day after the Protest Payment was made. The district courts of Travis County have jurisdiction of a taxpayer suit brought under Chapter 112 of the Tax Code. TEX. TAX. CODE ANN. § 112.001 (West 2008 & Supp. 2011). 5. All other jurisdictional requirements for the filing of this suit have been met. IV. FACTS 6. Plaintiff and its affiliates listed in Exhibit A are included in a combined group for purposes of reporting Texas franchise tax (collectively, the "Nestle Combined Group" or the "Group"). The Nestle Combined Group manufactures and distributes food and beverages and performs related services in the United States. The Group owns and operates 25 manufacturing facilities in the United States, all outside of Texas. The Group conducts exclusively wholesale and retail activities in Texas. Although the Nestle Combined Group engages only in wholesale - 2 -
activities in Texas, it is subject to the higher 1.0% franchise tax rate applicable to Texas manufacturers. 7. On May 11, 2012, Plaintiff electronically submitted to the Comptroller, on behalf of the Nestle Combined Group, the Protest Payment as complete payment of franchise tax for report year 2012. On the same day, Plaintiff hand-delivered to the Comptroller a Protest Letter stating fully and in detail its reasons for recovering the Protest Payment. 8. Plaintiff and each member of the Nestle Combined Group is jointly and severally liable for the franchise tax of the entire Nestle Combined Group. TEX, TAX. CODE ANN. § 171.1014(i). V. CAUSE OF ACTION 9. Plaintiff seeks recovery of the Protest Payment pursuant to Texas Tax Code Section 117.052 because the Texas franchise tax violates both the Texas Constitution and the United States Constitution. A. The Margin Tax Violates the Equal and Uniform Clause of the Texas Constitution. 10, The Margin Tax violates the Equal and Uniform Clause of the Texas Constitution because it taxes taxpayers disparately based on classifications that have no reasonable relationship to the value of the privilege of doing business in Texas. The Equal and Uniform Clause requires classifications among taxpayers within a franchise tax to be reasonably related to the value being taxed. 11. Article VIII, Section 1(a) of the Texas Constitution provides that "taxation shall be equal and uniform." Generally, the Equal and Uniform Clause requires that any classifications among taxpayers must not be unreasonable, arbitrary, or capricious. Enron Corp, v, Spring Indep, Sch. Dist., 922 S.W,2d 931, 936 (Tex. 1996); Hurt v. Cooper, 110 S.W.2d 896, 901 (Tex. 1937), With respect to an occupation tax, Texas courts have held that this standard 3
Page 1 and 2:
No. __________ In The Supreme Court
Page 3 and 4:
TABLE OF CONTENTS IDENTITY OF PARTI
Page 5 and 6:
Rylander v. Fisher Controls Int’l
Page 7 and 8:
U.S. CONST. art. 1, § 8...........
Page 9 and 10:
STATEMENT OF JURISDICTION Section 1
Page 11 and 12:
STATEMENT OF FACTS I. The Margin Ta
Page 13 and 14:
taxable entity and to owners of cer
Page 15 and 16:
Texas. Id. Nestle conducts exclusiv
Page 17 and 18:
the same standard for all taxpayers
Page 19 and 20:
esults in an arbitrary amount of co
Page 21 and 22:
As detailed above, each step of the
Page 23 and 24:
twice the tax rate. There is no rat
Page 25 and 26:
or activities within the taxing sta
Page 27 and 28:
CERTIFICATE OF SERVICE I certify th
Page 29 and 30:
Appendix 1 Texas Tax Code, Chapter
Page 31 and 32:
TAX CODE CHAPTER 171. FRANCHISE TAX
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87 and 88:
Page 89 and 90:
Page 91 and 92:
Page 93 and 94:
Page 95 and 96:
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
UNITED STATES CONSTITUTION AMENDMEN
Page 121 and 122:
UNITED STATES CONSTITUTION ARTICLE
Page 123 and 124:
Appendix 4 Texas Constitution Artic
Page 125 and 126:
(f) The occupation tax levied by an
Page 127 and 128:
C -ki§, rod, AO ;i* 2012 Texas Fra
Page 129 and 130:
Report (Form 05-163) annually to af
Page 131 and 132:
Final Reports An entity that ceases
Page 133 and 134:
An affiliated group can include:
Page 135 and 136:
entity at the address listed on the
Page 137 and 138:
Specific Line Instructions for Each
Page 139 and 140:
• For a taxable entity filing as
Page 141 and 142:
Item 11. Cost of goods sold (COGS)
Page 143 and 144:
To compute Net Distributive Income
Page 145 and 146:
Item 30, Tax due Item 28 multiplied
Page 147 and 148:
e included in the combined group re
Page 149 and 150:
Form 05-166 Texas Franchise Tax Aff
Page 151 and 152: Note: Do not enter any amount relat
Page 153 and 154: Appendix 6 Affidavit of Alan Pasets
Page 155 and 156: would have had a compensation deduc
Page 157 and 158: '32212 vet-. 35 ,3 :".f! A Texas Fr
Page 159 and 160: 2.2 Val:, 3 liTexpavel rixliter 05
Page 161 and 162: 7E2012 Vet- , 3.0 Texas Franchise T
Page 163 and 164: TE2C- 12 Vez' . 3. e. Texas Franchi
Page 165 and 166: TX2112 er, • ,q,p: Texas Franchis
Page 167 and 168: . 2 der, 3.4 Texas Franchise Tax Af
Page 169 and 170: TX2- 0 .4.2 Ver. 3. t+ ificode 1321
Page 171 and 172: TXS012 Ver. . 3,0 0,5-102 9-1 1 /30
Page 173 and 174: T2 12 05-102 ■.fRev 9-11/30# Tcot
Page 175 and 176: TX2012 Ver. 3.7 Ct 102 Rev 9- 1 1.'
Page 177 and 178: TX27.12. Var . Texas Franchise Tax
Page 179 and 180: TX201.2 ver. 05 102 (Rev 9-11/3c gi
Page 181 and 182: TXn12 'tee. Texas Franchise Tax Pub
Page 183 and 184: :x1:12 Texas Franchise Tax Public I
Page 185 and 186: PAYER'S name, street address, city,
Page 187 and 188: WINSTEAD Austin Dallas Fort Worth H
Page 189 and 190: Texas Comptroller of Public Account
Page 193 and 194: Exhibit A Nestle USA, Inc. Nestle T
Page 195 and 196: 11E Co May 15, 2012 COMPTROLLER OF
Page 197 and 198: AFFIDAVIT OF DONALD DEERE 1. My nam
Page 199 and 200: Revised Draft 10/19/2011 Economic A
Page 201: CAUSE NO. Filed 12 June 15 P3:17 Am
Page 205 and 206: determination of the tax rate, cont
Page 207 and 208: elationship to the value of the Pri
Page 209 and 210: excess of $330,000. See id. §§ 17
Page 211 and 212: discriminate against interstate com
show all

Petition for Writ of Mandamus - Filed - Supreme Court of Texas

Create successful ePaper yourself

Delete template?

Save as template?