commerce clause in New York

1983Seelig, Inc., 294 US 511, 522 , supra).

1983It was recognized there that: “If Louisiana were the only State to impose an additional tax burden for such out-of-state operations, the disparate treatment would be an incentive to locate within Louisiana; it would tend To neutralize advantages belonging to the place of origin.’ Baldwin v. Seelig, Inc., 294 U. S. 511, 527 .

1958Rates had long been subject to regulation in New York when, in 1944, the Supreme Court of the United States held in United States v. Underwriters Assn. ( 322 U. S. 533 ) that insurance companies conducting business transactions across State lines were subject to the regulatory power of Congress under the commerce clause of the United States Constitution (art.

1951Co. v. Benjamin , 328 U. S. 408, 414, 434 .) Then, in United States v. South-Eastern Underwriters Assn. ( 322 U. S. 533 ), the Supreme Court sustained an indictment against the insurance association under the Sherman Act, thereby holding that Congress under the commerce clause had the power to regulate the business of insurance, i. e., that insurance was commerce and, when it crossed State lines, interstate commerce.

2023Although applying the internal consistency test is not the first step in the dormant [*3]Commerce Clause inquiry ( see Matter of Tamagni v Tax Appeals Trib. of State of N.Y. , 91 NY2d 530, 540 [1998], cert denied 525 US 931 [1998]), in light of this Court's holding in Walt Disney , we find it necessary to focus our examination only on the "fairly apportioned" prong of the dormant Commerce Clause test, which implicates the internal and external consistency tests.

2016Accordingly, “there is no differential treatment of identifiable, similarly situated in-[s]tate and out-of-[s]tate interests, [and] there is no dormant Commerce Clause violation” on the face of the wage order (Matter of Tamagni v Tax Appeals Trib. of State of N.Y., 91 NY2d 530, 539 [1998], cert denied 525 US 931 [1998]; see International Franchise Assn., Inc. v City of Seattle, 803 F3d 389, 400 [9th Cir 2015]; Matter of Pascazi v Gardner, 106 AD3d 1143, 1145 [2013], appeal dismissed 21 NY3d 1057 [2013], lv denied 22 NY3d 857 [2013]).

1980In my view and, that of my fellow dissenters, while the town's ordinance is not pre-empted by State law, it is in conflict with the commerce clause of the United States Constitution (art I, § 8), both "on its face and in its plain effect" ( Philadelphia v New Jersey , 437 US 617, 627 ).

1980Thereafter, the Supreme Court of the United States held that a New Jersey statute which prohibited the importation of most out-of-State wastes violated the commerce clause of the United States Constitution (City of Philadelphia v New Jersey, 437 US 617 ).

1974"Gross annual receipts shall not include any taxes on services furnished by a cable television company imposed directly on any subscriber or user by any municipality, state, or other governmental unit and collected by the company for such governmental unit.” Gross annual receipts include only that income derived from operations within the State; the section does not violate the commerce clause (Western Live Stock v Bureau, 303 US 250 ; H & B Communications Corp. v Richland, 79 Wn2d 312).

1939As to claimant’s argument of additional taxation, it was said in Western Live Stock v. Bureau of Revenue (supra): “ It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of tax burden even though it increases the cost of doing the business.” Matter of Paul ( 165 N. Y.

2000It has long been recognized, however, that the movement of persons across State lines is a form of commerce (see, Camps Newfound/Owatonna v Town of Harrison, 520 US 564, 573 , citing Edwards v California, 314 US 160, 172 ).

2000It has long been recognized, however, that the movement of persons across State lines is a form of commerce ( see, Camps Newfound/Owatonna v Town of Harrison, 520 US 564, 573 , citing Edwards v California, 314 US 160, 172 ).

1986The case law is clear, however, that without proof of actual double taxation, the possibility of multistate sales or use taxation of a single transaction does not violate the commerce clause (Harvester Co. v Department of Treasury, supra, p 348; Matter of Atlantic Gulf & Pacific Co. v Gerosa, 16 NY2d 1 , appeal dismissed 382 US 368 [and cases cited therein at pp 6-7]).

1984Although petitioner recognizes that New York’s sales and compensating use taxes generally are not an unconstitutional burden on interstate commerce (Matter of Atlantic Gulf & Pacific Co. v Gerosa, 16 NY2d 1 , app dsmd 382 US 368 ), it suggests that the use tax is unconstitutional in this instance because the airplane, having been utilized in interstate journeys both before and after being based in New York State, could no longer be subject to State use taxes.

1981In its decision, the court Toomer v Witsell ( 334 US 385, 396 ) where it was said: “one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.” ANALYSIS Prior to the Gordon decision, the effect of the interplay of CPLR 9406 (subd 2) and section 470 of the Judiciary Law was that an applicant had to be an actual resident of the State for at least six months immediately preceding admission.

1975The commerce clause, of course, imposes additional limitations on the States’ taxing powers and "restrictions inimical to the commerce clause should not be approved simply because they facilitate in some measure enforcement of a valid tax” (Toomer v Witsell, 334 US 385, 406 ).

1965Protection of life, health, safety and property is a local problem and primarily the function of the States (Bradley v. Public Utilities Comm., 289 U. S. 92 ) and the right on the part of the States in a field not occupied by Congress to protect the life, health and safety of its people is in no way inconsistent with the purpose of the commerce clause to place in Congress supreme control over interstate commerce, since the paramount authority of Congress always enables it to intervene in its discretion (Minnesota Rate Cases, 230 U. S. 352 ; South Carolina State Highway Dept. v. Barnwell Bros.,

1953Dept. v. Barnwell Bros, 303 U. S. 177 ; Duckworth v. Arkansas, 201 Ark. 1123 , affd. 314 U. S. 390 ; California v. Zook, 336 U. S. 725, 735 ; Aero Tr.

2016Accordingly, “there is no differential treatment of identifiable, similarly situated in-[s]tate and out-of-[s]tate interests, [and] there is no dormant Commerce Clause violation” on the face of the wage order (Matter of Tamagni v Tax Appeals Trib. of State of N.Y., 91 NY2d 530, 539 [1998], cert denied 525 US 931 [1998]; see International Franchise Assn., Inc. v City of Seattle, 803 F3d 389, 400 [9th Cir 2015]; Matter of Pascazi v Gardner, 106 AD3d 1143, 1145 [2013], appeal dismissed 21 NY3d 1057 [2013], lv denied 22 NY3d 857 [2013]).

2016Accordingly, “there is no differential treatment of identifiable, similarly situated in-[s]tate and out-of-[s]tate interests, [and] there is no dormant Commerce Clause violation” on the face of the wage order (Matter of Tamagni v Tax Appeals Trib. of State of N.Y., 91 NY2d 530, 539 [1998], cert denied 525 US 931 [1998]; see International Franchise Assn., Inc. v City of Seattle, 803 F3d 389, 400 [9th Cir 2015]; Matter of Pascazi v Gardner, 106 AD3d 1143, 1145 [2013], appeal dismissed 21 NY3d 1057 [2013], lv denied 22 NY3d 857 [2013]).

2001Indeed, the Attorney General points to Public Service Commission documents that show, for the tax period in question, unregulated sellers served only 4,000 small customers (see, New York State Public Service Commission, Department of Public Service, 1995-1996 Annual Report, at 13). 6 Tennessee’s submissions do not convince us that sales of gas subject to sections 186 and 186-a pass-through taxes as compared to unregulated sales establish the “ ‘substantial distinctions and real injuries’ ” necessary in a Commerce Clause challenge (Associated Indus. v Lohman, 511 US 641, 654 [quoting Gregg Dyei

2001Indeed, the Attorney General points to Public Service Commission documents that show, for the tax period in question, unregulated sellers served only 4,000 small customers (see, New York State Public Service Commission, Department of Public Service, 1995-1996 Annual Report, at 13). 6 Tennessee’s submissions do not convince us that sales of gas subject to sections 186 and 186-a pass-through taxes as compared to unregulated sales establish the “ ‘substantial distinctions and real injuries’ ” necessary in a Commerce Clause challenge (Associated Indus. v Lohman, 511 US 641, 654 [quoting Gregg Dyei

2000It has long been recognized, however, that the movement of persons across State lines is a form of commerce (see, Camps Newfound/Owatonna v Town of Harrison, 520 US 564, 573 , citing Edwards v California, 314 US 160, 172 ).

2000It has long been recognized, however, that the movement of persons across State lines is a form of commerce ( see, Camps Newfound/Owatonna v Town of Harrison, 520 US 564, 573 , citing Edwards v California, 314 US 160, 172 ).

1997This does not end our inquiry since this case involves Canadian trucking corporations, thereby implicating the Foreign Commerce Clause (US Const, art I, § 8) which requires us to determine if the challenged tax exposes plaintiffs to an enhanced risk of multiple taxation and impairs Federal uniformity in an area where Federal uniformity is essential (see, Container Corp. v Franchise Tax Bd., 463 US 159, 185-186 ).

1986In a similar vein, the Supreme Court has recognized that, despite the commerce clause, a State can properly require a corporation to file a combined report when the corporation and a foreign corporation were involved in a unitary business (see, Container Corp. v Franchise Tax Bd., 463 US 159 ).

1995Bellas Hess itself, in requiring the vendor's physical presence, explicitly stated that it was applying a definite link or minimum connection requirement, which was the then prevailing nexus standard for both Due Process and Commerce Clause analysis in interstate commerce taxation cases (see , 386 US, at 756-757 , supra) . *177 Surely as a matter of simple logic and semantics, the Supreme Court was not applying a substantial physical presence requirement when it upheld the State tax on the in-State activity of the interstate vendor in the following cases: Felt & Tarrant Co. v Gallagher ( 306 U

1991Complete Auto Tr. v Brady ( 430 US 274 ) allows a tax over a Commerce Clause challenge if the tax (1) is applied to an activity with a substantial nexus with the taxing State; (2) is fairly apportioned; (3) does not discriminate against interstate commerce; and (4) is fairly related to the services provided by the State (id., at 279; Goldberg v Sweet, 488 US 252, 266-267 ).

1995Co. v Bair, 437 US 267 ; General Motors v Washington, 377 US 436 ; accord, Nelson v Sears, Roebuck & Co., 312 US 359 ; Nelson v Montgomery Ward, 312 US 373 [no Commerce Clause violation where sellers maintained local retail stores in taxing State]).

1995Co. v Bair , 437 US 267 ; General Motors v Washington , 377 US 436 ; accord , Nelson v Sears, Roebuck & Co. , 312 US 359 ; Nelson v Montgomery Ward , 312 US 373 [no Commerce Clause violation where sellers maintained local retail stores in taxing State]).

1986The case law is clear, however, that without proof of actual double taxation, the possibility of multistate sales or use taxation of a single transaction does not violate the commerce clause (Harvester Co. v Department of Treasury, supra, p 348; Matter of Atlantic Gulf & Pacific Co. v Gerosa, 16 NY2d 1 , appeal dismissed 382 US 368 [and cases cited therein at pp 6-7]).

1984Although petitioner recognizes that New York’s sales and compensating use taxes generally are not an unconstitutional burden on interstate commerce (Matter of Atlantic Gulf & Pacific Co. v Gerosa, 16 NY2d 1 , app dsmd 382 US 368 ), it suggests that the use tax is unconstitutional in this instance because the airplane, having been utilized in interstate journeys both before and after being based in New York State, could no longer be subject to State use taxes.