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

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DIda i DV[al I CAN.] t..t.nvIr 11VLLtn May-II-2012 01;57pe From-Winstead PC uc uo:zo p,m, 51245T4265 T-741 P.007/008 F-4I8 Texas Comptroller of Public Accounts May 11, 2012 Page 6 IV, The Margin Tax Violates the Commerce Clause of the United States Constitution, The Commerce Clause prohibits discrimination against interstate commerce and bars state regulation that unduly burdens interstate commerce. Quill, 504 U.S. at 312; see U,S Cot'ST. art. 1, § 8. Specifically, the Commerce Clause requires that a state tax (1) be applied to an activity with a substantial nexus with the taxing state, (2) be fairly apportioned, (3) not discriminate against interstate commerce, and (4) fairly relate to the services provided by the state, Complete Auto Transit, Inc, v. Brady, 430 U.S 274, 279 (1977). A valid tax must treat similarly situated in-state and out-of•state taxpayers equally. Tyler Pipe inclus. v. Wash. State Dap? of Revenue, 483 U,S, 232, 246 (1987) (citing Halhburton Oil Well Cementing Co v, Roily, 373 U.S. 64, 70 (1963)). Further, the measure of the tax must be reasonably related to the extent of the taxpayers presence or activities within the taxing state and to the taxpayers consequent enjoyment of the opportunities that the state has afforded. Rylancler v. 3 Seats Bros, 3, Inc., 2 S.W.3d 562, 571 (Tex. App.—Austin 1999, pet. denied) (citing Commonwealth Edison Co, v, Montana, 453 U.S. 609, 629 (1981)). The Margin Tax imposes a tax rate that is often dependent on a taxpayers activities outside of Texas For example. Nestle is subject to a tax rate of 1,0% rather than 0.5% based solely on the fact that it manufactures in other states. The Margin Tax disenminates against interstate commerce by subjecting entities to a higher tax rate based solely on the fact that they conduct certain activities in interstate activities. The Margin Tax also is not fairly related to the services provided by Texas becauSe it imposes different tax rates on similarly-situated wholesalers based on their operations in other states, which operations have no relation to the services provided by Texas. Because it •discnm ►nates against interstate commerce and does not fairly relate to the services provided by Texas, the Margin Tax violates the Commerce Clause of the united States Constitution. For the foregoing reasons, Nestle merits recovery of the Protest Payment. By your signature at the bottom of this letter, you acknowledge receipt of this written statement of protest. Thank you very much for your assistance. Sincerely, RECEIVED: Jennifer Patterson Rabb ilicTINJ 1 1kod4111 v 1 52275-1
Exhibit A Nestle USA, Inc. Nestle Transportation Company NFC Services Company, Inc. NDC Services, Inc, Vitality Foodservice Holding Corp. Vitality Foodservice, Inc. Nestle Holdings, Inc. Nestle Capital Corporation TSC Holdings, Inc. The Stouffer Corporation Nestle Prepared Foods Company Dreyers Grand Ice Cream Holdings, Inc. Nestle Dreyers Ice Cream Company The Haagen Dazs Shoppe Company, Inc. Nespresso USA, Inc. Nestle Purina Petcare Company Checkerboard Holding Company, Inc. Lasalle Park Redevelopment Corporation Nestle Purina Child Development Center, Inc. Nestle Purina Government Affairs, Inc. Purinacare Insurance Services, Inc. Nestle Purina Claims Processing, Inc. Jenny Craig Holdings, Inc. Jenny Craig, Inc. Jenny Craig Weight Loss Centres, Inc. Jenny Craig ANZ Franchising, Inc. Jenny Craig Operations, Inc. Jenny Craig NA Franchising, Inc. Nestle Insurance Holdings, Inc. Gerber Family Services, Inc, Nestle Healthcare Nutrition, Inc. Gerber Products Company Gerber Finance Company AUSTIN _l 1661403 vl 52275-1
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No. __________ In The Supreme Court
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TABLE OF CONTENTS IDENTITY OF PARTI
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Rylander v. Fisher Controls Int’l
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U.S. CONST. art. 1, § 8...........
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STATEMENT OF JURISDICTION Section 1
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STATEMENT OF FACTS I. The Margin Ta
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taxable entity and to owners of cer
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Texas. Id. Nestle conducts exclusiv
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the same standard for all taxpayers
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esults in an arbitrary amount of co
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As detailed above, each step of the
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twice the tax rate. There is no rat
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or activities within the taxing sta
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CERTIFICATE OF SERVICE I certify th
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Appendix 1 Texas Tax Code, Chapter
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TAX CODE CHAPTER 171. FRANCHISE TAX
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UNITED STATES CONSTITUTION AMENDMEN
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UNITED STATES CONSTITUTION ARTICLE
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Appendix 4 Texas Constitution Artic
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(f) The occupation tax levied by an
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C -ki§, rod, AO ;i* 2012 Texas Fra
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Report (Form 05-163) annually to af
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Final Reports An entity that ceases
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An affiliated group can include:
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entity at the address listed on the
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Specific Line Instructions for Each
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• For a taxable entity filing as
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Item 11. Cost of goods sold (COGS)
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To compute Net Distributive Income
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Item 30, Tax due Item 28 multiplied
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e included in the combined group re
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Form 05-166 Texas Franchise Tax Aff
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Note: Do not enter any amount relat
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Appendix 6 Affidavit of Alan Pasets
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would have had a compensation deduc
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'32212 vet-. 35 ,3 :".f! A Texas Fr
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2.2 Val:, 3 liTexpavel rixliter 05
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7E2012 Vet- , 3.0 Texas Franchise T
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TE2C- 12 Vez' . 3. e. Texas Franchi
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TX2112 er, • ,q,p: Texas Franchis
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. 2 der, 3.4 Texas Franchise Tax Af
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Page 173 and 174: T2 12 05-102 ■.fRev 9-11/30# Tcot
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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 and 202: CAUSE NO. Filed 12 June 15 P3:17 Am
Page 203 and 204: activities in Texas, it is subject
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
Page 213 and 214: Exhibit A Nestle USA, Inc. Nestle T
Page 219: Texas Comptroller of Public Account
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Petition for Writ of Mandamus - Filed - Supreme Court of Texas

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