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

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STATEMENT OF THE CASE This is an original proceeding to recover franchise tax paid by Relator under protest based on Relator’s challenges to the constitutionality of the Texas franchise tax, Chapter 171 of the Texas Tax Code. Relator seeks mandamus relief to compel the Texas Comptroller of Public Accounts (the “Comptroller”) to refund the franchise tax paid by Relator under protest; declaratory relief holding that the Texas franchise tax violates the Texas Constitution and the United States Constitution; and injunctive relief enjoining the Comptroller from enforcing, collecting, and assessing the Texas franchise tax against Relator. viii
STATEMENT OF JURISDICTION Section 112.052 of the Texas Tax Code grants a taxpayer the right to bring suit against the State to recover a franchise tax required to be paid to the State if the person has first paid the tax under protest. TEX. TAX CODE ANN. § 112.052(a) (West 2008 & Supp. 2011). Typically, the district courts of Travis County have exclusive and original jurisdiction over a taxpayer suit brought pursuant to Section 112.052. Id. § 112.001. However, in 2006, the Texas Legislature provided “a specific, limited exception” to the district courts’ jurisdiction and granted the Texas Supreme Court exclusive and original jurisdiction over a challenge to the constitutionality of the Texas franchise tax, Texas Tax Code, Chapter 171. H.B. 3, 79th Leg., 3rd C.S., §§ 24 and 27 (Tex. 2006); In re Nestle USA, Inc. et al., 359 S.W.3d 207, 210 (Tex. 2012) (quoting In re Allcat Claims Service, L.P., 356 S.W.3d 455, 462 (Tex. 2011)). This Court recently held that the Legislature’s grant of jurisdiction in 2006 authorized the Texas Supreme Court to consider the constitutionality of the Texas franchise tax in order to determine whether mandamus should issue directing the Comptroller to refund franchise tax paid under protest. In re Allcat Claims Service, L.P., 356 S.W.3d 455, 463 (Tex. 2011). When this Court has jurisdiction to issue a writ of mandamus, it also has the correlative authority to provide declaratory and injunctive relief. Id. at 462. ix
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: U.S. CONST. art. 1, § 8...........
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
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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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TX2- 0 .4.2 Ver. 3. t+ ificode 1321
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TXS012 Ver. . 3,0 0,5-102 9-1 1 /30
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T2 12 05-102 ■.fRev 9-11/30# Tcot
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TX2012 Ver. 3.7 Ct 102 Rev 9- 1 1.'
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TX27.12. Var . Texas Franchise Tax
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TX201.2 ver. 05 102 (Rev 9-11/3c gi
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TXn12 'tee. Texas Franchise Tax Pub
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:x1:12 Texas Franchise Tax Public I
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PAYER'S name, street address, city,
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WINSTEAD Austin Dallas Fort Worth H
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Texas Comptroller of Public Account
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Exhibit A Nestle USA, Inc. Nestle T
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11E Co May 15, 2012 COMPTROLLER OF
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AFFIDAVIT OF DONALD DEERE 1. My nam
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Revised Draft 10/19/2011 Economic A
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CAUSE NO. Filed 12 June 15 P3:17 Am
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activities in Texas, it is subject
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determination of the tax rate, cont
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elationship to the value of the Pri
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excess of $330,000. See id. §§ 17
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discriminate against interstate com
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Petition for Writ of Mandamus - Filed - Supreme Court of Texas

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