Panhandle Eastern Pipeline Company v. Hamer ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Panhandle Eastern Pipeline Co. v. Hamer, 2012 IL App (1st) 113559Appellate Court PANHANDLE EASTERN PIPELINE COMPANY, a Delaware
Caption Corporation, and TEXAS EASTERN TRANSMISSION
CORPORATION, a Delaware Corporation, Plaintiffs-Appellees, v.
BRIAN A. HAMER, as Director of the Department of Revenue, and THE
DEPARTMENT OF REVENUE, Defendants-Appellants.
District & No. First District, Fifth Division
Docket No. 1-11-3559
Filed December 7, 2012
Held The calculation of plaintiffs’ right to a corporate income tax refund on
(Note: This syllabus their natural gas pipelines that crossed Illinois but neither began nor
constitutes no part of ended within the state, based on the inclusion of the miles that gas flowed
the opinion of the court through Illinois in the numerator of the apportionment formula, did not
but has been prepared violate the commerce clause; therefore, the Department of Revenue’s
by the Reporter of denial of refunds was reinstated.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-051281; the
Review Hon. Robert Lopez Cepero, Judge, presiding.
Judgment Reversed.
Counsel on Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal Solicitor General, and Laura Wunder, Assistant Attorney General, of
counsel), for appellants.
Craig B. Fields and Mitchell A. Newmark, both of Morrison & Foerster
LLP, and Fred O. Marcus and David A. Hughes, both of Horwood
Marcus & Berk Chtrd., both of Chicago, for appellees.
Panel PRESIDING JUSTICE McBRIDE delivered the judgment of the court,
with opinion.
Justices Howse and Taylor concurred in the judgment and opinion.
OPINION
¶1 Defendants, Brian Hamer, as Director of the Illinois Department of Revenue (the
Director) and the Illinois Department of Revenue (the Department), appeal from the circuit
court’s order reversing the Department’s denial of refunds for corporate income tax and
interest to plaintiffs, Panhandle Eastern Pipeline Company and Texas Eastern Transmission
Corporation. Plaintiffs had filed amended tax returns seeking a refund of income tax paid
under section 304(d)(2) of the Illinois Income Tax Act (Tax Act) (35 ILCS 5/304(d)(2) (West
2010)) on its gas pipelines that traverse Illinois, but neither begin nor end within Illinois.
¶2 The Department argues that its decision denying the tax refunds should be reinstated
because the miles that plaintiffs’ gas flowed through Illinois were includable in the
numerator of section 304(d)(2)’s apportionment formula and plaintiffs failed to establish that
section 304(d)(2) violated the commerce clause.
¶3 No evidentiary hearing or trial was held in this case. The parties submitted a joint
stipulation of facts to the administrative law judge (ALJ).
¶4 Duke Energy Corporation (Duke), through its subsidiaries, was engaged in the receipt,
transportation, storage and delivery of natural gas in various states, including Illinois. The
time periods at issue are the tax years ending December 31, 1997, December 31, 1998,
December 31, 1999, and December 31, 2000 (tax years). During these time periods, three
natural gas pipelines systems owned and operated by subsidiaries of Duke traversed Illinois:
the Panhandle system, the Texas Eastern Transmission system, and the Trunkline Gas
Transmission system. These three pipeline systems transported natural gas owned by others.
¶5 During tax years 1997 and 1998, Panhandle Eastern Pipeline Company (Panhandle) was
engaged in the business of transporting natural gas by pipeline and was a wholly owned
subsidiary of PanEnergy Corporation, which was owned by Duke. The Panhandle pipeline
system began in Kansas and terminated in Michigan. Panhandle operated approximately
1,228 miles out of the approximately 6,334 total miles of the pipeline in Illinois. Panhandle
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owned and operated four compressor stations in Illinois. These compressor stations operated
a total of 49 engines.
¶6 During the tax years, Texas Eastern Transmission Corporation (TETCO) was engaged
in the business of transporting natural gas by pipeline and was a wholly owned subsidiary of
PanEnergy. The TETCO pipeline system began in Texas and terminated in New Jersey.
TETCO operated approximately 110 miles in Illinois out of the approximately 9,000 total
miles of the pipeline. TETCO operated two compressor stations in Illinois with nine engines,
though one of the stations was idle during the tax years.
¶7 During tax years 1997 and 1998, the Trunkline Gas Company (Trunkline) was engaged
in the business of transporting natural gas and was a wholly owned subsidiary of Panhandle.
The Trunkline pipeline system began in Texas and Louisiana and terminated in Michigan.
Trunkline operated 725 miles of the approximately 4,142 total miles of pipeline in Illinois.
Trunkline operated three compressor stations with 22 total engines.
¶8 All of the compressor stations owned by Panhandle, Trunkline and TETCO were staffed
24 hours per day, 365 days a year. However, the compressor stations did not operate 24 hours
a day. The compressor stations recompressed the natural gas to move the gas through the
pipelines and the gas could not move without the pressure generated by the compressor
stations. Duke and its subsidiaries owned the land on which the compressor stations were
located and had obtained permanent easements for the pipelines.
¶9 Plaintiffs do not dispute that they had a physical presence in Illinois and were subject to
Illinois income tax. However, plaintiffs contest the computation of the amount of income tax
due for the tax years.
¶ 10 Duke’s transportation unitary business group operated pipelines that transported natural
gas. Panhandle was the designated agent for Duke’s unitary group of companies in the tax
years 1997 and 1998. In 1999, Duke sold Panhandle and Trunkline to another energy
company. TETCO became the designated agent for the tax years after 1998. Panhandle and
TETCO, as the designated agents, were the named plaintiffs in this case.
¶ 11 For the 1997 and 1998 tax years, Panhandle filed Illinois income tax returns for the
unitary business group, paying $506,541 and $1,422,195, respectively. In October 2001,
Panhandle filed an amended return claiming a tax refund of $247,624 for the 1997 tax year.
In October 2002, Panhandle also filed an amended tax return for the 1998 tax year, seeking
a tax return of $1,044,522.
¶ 12 TETCO filed income tax returns for tax years 1999 and 2000, initially paying Illinois
income tax of $3,480,942 and $54,230, respectively. In March 2003, TETCO filed amended
tax returns for both tax years, claiming a tax refund of $2,713,162 for tax year 1999, and
$47,874 for tax year 2000.
¶ 13 The amended tax returns excluded miles traveled by natural gas in pipelines through
Illinois from the numerator of its apportionment factor, set forth in section 304(d)(2) of the
Tax Act (35 ILCS 5/304(d)(2) (West 2010)), where the natural gas did not originate or
terminate within Illinois. The claims for refunds were the difference paid prior to the change
in the calculation.
¶ 14 Section 304(d)(2) provides:
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“Such business income derived from transportation by pipeline shall be apportioned to
this State by multiplying such income by a fraction, the numerator of which is the
revenue miles of the person in this State, and the denominator of which is the revenue
miles of the person everywhere. For the purposes of this paragraph, a revenue mile is the
transportation by pipeline of 1 barrel of oil, 1,000 cubic feet of gas, or of any specified
quantity of any other substance, the distance of 1 mile for a consideration.” 35 ILCS
5/304(d)(2) (West 2010).
¶ 15 In November 2005, the Department denied Panhandle’s claims for refunds for tax years
1997 and 1998 and TETCO’s claims for refunds for tax years 1999 and 2000. Both
companies filed a protest to the denial.
¶ 16 In the stipulation of facts, the parties agreed that if the ALJ adopted the plaintiffs’
position that the miles traveled by natural gas transported in pipelines through Illinois did not
constitute revenue miles in the state that were includable in the numerator of the plaintiffs’
Illinois apportionment factor where the gas neither originates nor terminates in Illinois, the
notice of denial would be reversed and the refunds for the tax years would be processed.
¶ 17 The parties further agreed that if the ALJ adopted the Department’s position that miles
traveled by natural gas transported in pipelines through Illinois that neither originates nor
terminates in Illinois constituted revenue miles in the state that were includable in the
numerator of the plaintiffs’ apportionment factor, plaintiffs were not entitled to refunds for
the tax years unless such revenue miles were excludable from the numerator of the plaintiffs’
apportionment formula under an alternative method of apportionment.
¶ 18 In August 2009, the ALJ issued a recommended decision affirming the Department’s
denial of the claims for tax refunds. The ALJ disagreed with plaintiffs’ position that the
“flow-through” miles, the miles that the natural gas traveled in Illinois as part of plaintiffs’
interstate pipeline that neither originated nor terminated in Illinois, were not considered
revenue miles “in this State” as provided in section 304(d)(2). The ALJ found that the record
was “replete with evidence of physical and economic contacts between Illinois and the flow-
through miles the state seeks to include in the numerator of the taxpayers’ apportionment
formula.” The ALJ also concluded that the statutory language was clear and if the legislature
had intended for the narrow construction urged by plaintiffs, then it would have included
such limiting language. Further, the ALJ observed that plaintiffs’ construction of section
304(d)(2) “would result in the assignment of less than 100% of the taxpayers’ income to the
states in which the taxpayers are subject to tax.” The ALJ held that the Department’s
interpretation of section 304(d)(2) “best effectuates the legislative intent of this section in
accordance with the dictates of the Illinois Supreme Court.” The ALJ also rejected plaintiffs’
contention that including the flow-through miles in the apportionment factor would violate
the commerce clause.
¶ 19 In August 2009, the Director issued a notice of decision that the recommendation of the
ALJ had been accepted by the Director as “dispositive of the issues therein.” In September
2009, plaintiffs filed a complaint for administrative review of the Department’s decision in
the circuit court.
¶ 20 In November 2011, the trial court issued its memorandum decision and judgment order.
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The court reversed the Director’s notice of decision and held that plaintiffs were entitled to
the tax refunds claimed. The court specifically found that while plaintiffs’ presence and
activities in Illinois were sufficient for Illinois to assess an income tax on flow-through miles
of gas, “Illinois did not tax the flow-through gas during the [tax years.]” The court based its
reasoning on the General Assembly’s amendment to section 304(d) in 2007 (see Pub. Act 95-
233 (eff. Aug. 16, 2007)) “by terminating the applicability of Section 304(d)(2) and
providing for the applicability of Section 304(d)(3) which new subsection includes flow-
through gas in the numerator of the apportionment factor.” The trial court concluded that the
two distinct formulas set forth in sections 304(d)(2) and 304(d)(3) “demonstrate that the
General Assembly intended to prospectively change and not merely clarify Section 304(d).”
¶ 21 This appeal followed.
¶ 22 On appeal, the Department argues that it correctly included the flow-through miles of
natural gas in the numerator of plaintiffs’ apportionment factor as set forth in section
304(d)(2) because the flow-through miles constituted revenue miles in this state.
¶ 23 When a party appeals the circuit court’s decision on a complaint for administrative
review, the appellate court’s role is to review the administrative decision rather than the
circuit court’s decision. Siwek v. Retirement Board of the Policemen’s Annuity & Benefit
Fund, 324 Ill. App. 3d 820, 824 (2001). The Administrative Review Law provides that
judicial review of an administrative agency decision shall extend to all questions of law and
fact presented by the entire record before the court. 735 ILCS 5/3-110 (West 2010). The
factual determinations of an administrative agency are deemed prima facie true and correct.
735 ILCS 5/3-110 (West 2010) “The standard of review, ‘which determines the degree of
deference given to the agency’s decision,’ turns on whether the issue presented is a question
of fact, a question of law, or a mixed question of law and fact.” Comprehensive Community
Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d 455, 471 (2005) (quoting
AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390
(2001)).
¶ 24 Here, no questions of fact have been raised on appeal. “Courts recognize that agencies
can make informed judgments upon the issues, based upon their experience and expertise.”
Hartmarx Corp. & Subsidiaries v. Bower, 309 Ill. App. 3d 959, 964 (1999). “As the agency
charged with administration and enforcement of the [Tax Act,] the Department’s
interpretation of the Act is relevant and will receive some deference on review. However, the
Department’s interpretation is not binding on this court and review proceeds de novo.”
Northwest Airlines, Inc. v. Department of Revenue, 295 Ill. App. 3d 889, 892 (1998) (citing
Branson v. Department of Revenue, 168 Ill. 2d 247, 254 (1995)).
¶ 25 “Tax laws must be strictly construed; they must be given a reasonable construction,
without bias or prejudice against either the State or the taxpayer, in order to effectuate the
intent of the legislature.” Northwest Airlines, 295 Ill. App. 3d at 892 (citing Van’s Material
Co. v. Department of Revenue, 131 Ill. 2d 196, 202 (1989)). Further, the language of the tax
statute shall not be “extended or enlarged beyond its clear import” and “where the legislature
has seen fit to define a particular statutory term, we are bound by the definition as long as it
is reasonable.” Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 275 (1998).
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“A tax statute must be strictly construed against the government and in favor of the
taxpayer.” Kankakee County Board of Review v. Property Tax Appeal Board, 226 Ill. 2d 36,
52 (2007).
¶ 26 The parties maintain the same positions previously asserted. The Department argues that
the flow-through gas miles were properly included in the numerator of the apportionment
factor set forth in section 304(d)(2). In contrast, plaintiffs contend that the flow-through gas
miles should not be included in the numerator of the apportionment factor because the
language of section 304(d)(2) provides only for the revenue miles “in this State” to be
included in the numerator. The flow-through gas miles are not “in this State” because the gas
originates and terminates outside of Illinois.
¶ 27 “The purpose of *** article 3 of the [Tax Act] is to assure that 100%, and no more or no
less, of the business income of a corporation doing multistate business is taxed by the States
having jurisdiction to tax it.” GTE Automatic Electric, Inc. v. Allphin, 68 Ill. 2d 326, 335
(1977); see also Hartmarx Corp., 309 Ill. App. 3d at 967-68. “In our opinion there is a clearly
demonstrated legislative intent to allocate and apportion the business income from the
multistate operations of a corporation with those other States having jurisdiction to tax such
income in such manner that there is neither overlap nor gap in taxing all of such income
derived from the multistate business.” GTE, 68 Ill. 2d at 339.
¶ 28 Under the Tax Act, section 304(d)(2) calculates the tax apportionment factor with “the
revenue miles of the person in this State” in the numerator and “the revenue miles of the
person everywhere” in the denominator. 35 ILCS 5/304(d)(2) (West 2010). The statute
defines “revenue miles” as “the transportation by pipeline of *** 1,000 cubic feet of gas ***
the distance of 1 mile for a consideration.” 35 ILCS 5/304(d)(2) (West 2010). This formula
is used to compute the percentage of a corporation’s business conducted in Illinois.
¶ 29 The cardinal rule in construing a statute, to which all others are subordinate, is to
ascertain and give effect to the intent of the legislature. Alvarez v. Pappas, 229 Ill. 2d 217,
228 (2008). To determine legislative intent, we turn to the language of the statute, which is
the best indicator of its intent. Alvarez, 229 Ill. 2d at 228. We must give the statutory
language its “plain, ordinary, and popularly understood meaning,” and “[w]here the language
is clear and unambiguous, the statute must be given effect as written without resort to further
aids of statutory construction.” Alvarez, 229 Ill. 2d at 228. “[A]ll words and phrases must be
interpreted in light of other relevant provisions of the statute and must not be construed in
isolation.” Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007). “Each word, clause and sentence
of the statute, if possible, must be given reasonable meaning and not rendered superfluous.”
Brucker, 227 Ill. 2d at 514.
¶ 30 Plaintiffs contend that the phrase “in this State” does not include the flow-through miles
because “the word ‘in’ does not mean ‘through.’ ” As cited by plaintiffs, “in” is defined in
Black’s Law Dictionary as meaning “expressing relation of presence, existence, situation,
inclusion, action, etc.; inclosed or surrounded by limits, as in a room; also meaning for, in
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and about, on within, etc.” Black’s Law Dictionary 758 (6th ed. 1990).1 Plaintiffs focus on
the “surrounded by limits” portion of the definition and argue that the revenue miles in this
state are enclosed or surrounded by the limits of Illinois borders, but the gas is not limited
by Illinois borders and continues to flow beyond Illinois. However, plaintiffs have only
focused on one phrase of the definition. We point out that “in” also relates to a presence or
existence. Though not confined to Illinois, plaintiffs’ pipelines and the gas are present and
exist in Illinois, as the flow-through miles transport natural gas by pipeline.
¶ 31 Plaintiffs’ construction of “in this State” strains the natural meaning of the statute and
legislative purpose. As previously stated, the apportionment factor is intended to apportion
the income tax from businesses engaged in multistate operations by those states with
jurisdiction such that the business pays 100% of the taxes owed and no overlaps or gaps in
the imposition exist. The natural gas supplied by plaintiffs flows through Illinois, though
neither originating nor terminating here. Plaintiffs’ interpretation of section 304(d)(2) would
create a gap in the apportionment of taxes as they would no longer be subject to income tax
in Illinois, despite having pipelines that allow the flow of gas through the state. The
apportionment factor includes the revenue miles in this state as the numerator with the
denominator as the revenue miles everywhere. Under plaintiffs’ interpretation, the miles in
Illinois would not be included in the numerator, but would exist in the denominator. The
exclusion of the flow-through miles would create a taxation gap because the flow-through
miles would not be subject to tax in any other jurisdiction. These taxation gaps are to be
avoided. See GTE, 68 Ill. 2d at 339.
¶ 32 In contrast, the Department’s interpretation of the statute accomplishes the legislative
purpose by allowing Illinois to collect its share of plaintiffs’ income tax under the
apportionment factor. Under the Department’s construction, no gaps in taxation would arise
because the flow-through miles would be included in the numerator for the portion in Illinois
as well as in the denominator as part of the pipeline everywhere.
¶ 33 Nevertheless, plaintiffs contend that the General Assembly’s addition of section
304(d)(3) establishes that section 304(d)(2) does not include the flow-through miles because
section 304(d)(3) specifically includes the movement of gas that originates in one state or
jurisdiction and terminates in another state or jurisdiction. 35 ILCS 5/304(d)(3) (West 2010).
¶ 34 In 2007, the General Assembly amended section 304(d) by adding a new subsection,
which outlined a different method for computing the apportionment factor. Section 304(d)(3)
provides:
“For taxable years ending on or after December 31, 2008, business income derived from
providing transportation services other than airline services shall be apportioned to this
State by using a fraction, (a) the numerator of which shall be (i) all receipts from any
movement or shipment of people, goods, mail, oil, gas, or any other substance (other than
by airline) that both originates and terminates in this State, plus (ii) that portion of the
person’s gross receipts from movements or shipments of people, goods, mail, oil, gas,
1
We note that subsequent editions of Black’s Law Dictionary no longer provide a definition
for “in.”
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or any other substance (other than by airline) that originates in one state or jurisdiction
and terminates in another state or jurisdiction, that is determined by the ratio that the
miles traveled in this State bears to total miles everywhere and (b) the denominator of
which shall be all revenue derived from the movement or shipment of people, goods,
mail, oil, gas, or any other substance (other than by airline).” 35 ILCS 5/304(d)(3) (West
2010)2.
¶ 35 Plaintiffs assert that section 304(d)(3) is a substantive change from section 304(d)(2).
According to plaintiffs, section 304(d)(3) demonstrates that the flow-through miles were not
intended to be included under section 304(d)(2). We disagree.
¶ 36 While section 304(d)(3) clearly includes any flow-through miles as part of the
apportionment factor for tax years 2008 and later, it does not apply to the tax years at issue
in this case. Section 304(d)(3) sets forth a new calculation of the apportionment factor. The
apportionment factor no longer uses “revenue miles” as the determining figure for the
apportionment factor, but instead calculates the apportionment factor based on receipts. The
legislature’s enactment of a new method for calculating the apportionment factor, which
expressly includes flow-through miles, does not mean that flow-through miles could not have
been included in the numerator under section 304(d)(2). Section 304(d)(3)’s formula for
calculating the apportionment factor has no effect on our construction of section 304(d)(2).
Just because section 304(d)(3) specifically provides for the inclusion of flow-through miles,
it does not follow that section 304(d)(2)’s apportionment factor excluded the miles.
¶ 37 Plaintiffs also rely on the decision in Northwest Airlines as support for their position. In
that case, Northwest Airlines challenged the inclusion of “flyover miles” in the numerator
of its apportionment factor. Northwest Airlines was subject to the same apportionment factor
as plaintiffs: “the revenue miles of the airline ‘in this State.’ ” Northwest Airlines, 295 Ill.
App. 3d at 892 (quoting 35 ILCS 5/304(d)(1) (West 1996)). The “flyover miles” at issue
were the miles the airline flew in Illinois air space, where the flight neither originated nor
terminated in Illinois. Northwest Airlines, 295 Ill. App. 3d at 892-93. The Department had
held that the flyover miles were included in the apportionment factor and this interpretation
facilitated 100% apportionment of taxes and was not preempted by federal law or a violation
of the commerce clause. Northwest Airlines, 295 Ill. App. 3d at 891.
¶ 38 The reviewing court disagreed, finding that the record failed to demonstrate a sufficient
nexus between Illinois income tax and the transactions in Illinois. Northwest Airlines, 295
Ill. App. 3d at 894.
“There are no voice communications with overflights, and such flights make no use of
Illinois facilities, services, or employees. There exists no physical contact between
2
Section 304(d)(3) originally included in the apportionment factor “(ii) that portion of the
person’s gross receipts from movements or shipments of people, goods, mail, oil, gas, or any other
substance (other than by airline) passing through, into, or out of this State” in the numerator. Pub.
Act 95-233 (eff. Aug. 16, 2007) (adding 35 ILCS 5/304(d)(3)). The subsection was amended shortly
thereafter to include the current language. Pub. Act 95-707 (eff. Jan. 11, 2008) (amending 35 ILCS
5/304(d)(3) (West 2010)).
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overflights and this state, nor any economic connection. We do not find the mere
possibility that an overflight will avail itself of services and facilities in this state in the
event of an unscheduled landing sufficient to establish nexus. To the extent there is some
uncertainty as to what constitutes sufficient nexus, we need not reach that issue, as here
there is a total absence of any nexus between the overflights and this state.” (Emphasis
in original.) Northwest Airlines, 295 Ill. App. 3d at 894.
¶ 39 The court recognized the purpose of the Tax Act was to provide for 100% apportionment
of the tax burden on a company engaged in multistate business by the states with jurisdiction
to tax it, but under these circumstances, full apportionment could not be achieved outside the
constitutional parameters set by the supreme court. Northwest Airlines, 295 Ill. App. 3d at
894.
¶ 40 While the tax issue in Northwest Airlines is similar to the present case, the circumstances
of that case are significantly different. The biggest difference between the “flyover miles”
of Northwest Airlines and the “flow-through miles” at issue in the present case is that
plaintiffs had a physical presence in Illinois to maintain the flow of the natural gas to its
destination whereas the airplanes had no contact with Illinois while flying over the state. The
airline contested its presence in the state for the purposes of the Tax Act and the flyover
miles. Plaintiffs have conceded that they had compressor stations, employed Illinois residents
and had permanent easements for the pipeline. Plaintiffs also admit that they are subject to
the Tax Act, but dispute the formula used to compute the income tax owed. Here, plaintiffs
have pipelines in Illinois which allow natural gas to flow through the state.
¶ 41 We conclude that plaintiffs’ flow-through miles were properly included in the numerator
of the apportionment factor for the tax years. Under the rules for statutory interpretation, the
Department’s interpretation of section 304(d)(2) best accomplishes the legislative intent by
apportioning plaintiffs’ income tax burden in Illinois and does not create a gap in taxation
for plaintiffs’ interstate business.
¶ 42 Plaintiffs argue that even if we determine that the flow-through miles were included in
the numerator of the apportionment factor, this inclusion violates the commerce clause of the
United States Constitution.
¶ 43 “To withstand a claim that it has unconstitutionally burdened interstate commerce, a state
tax must satisfy the four-part test enunciated in Complete Auto Transit, Inc. v. Brady, 430
U.S. 274 *** (1977).” Irwin Industrial Tool Co. v. Department of Revenue, 238 Ill. 2d 332,
341-42 (2010). “Under Complete Auto, the tax must: (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) be fairly related to the services provided by the state.” Irwin
Industrial, 238 Ill. 2d at 341 (citing Complete Auto, 430 U.S. at 279).
¶ 44 Plaintiffs assert that the inclusion of the flow-through miles fails to satisfy the first and
last prongs of Complete Auto test. We first consider whether the flow-through miles have a
substantial nexus with Illinois.
¶ 45 “The Due Process and Commerce Clauses of the Constitution do not allow a State to tax
income arising out of interstate activities–even on a proportional basis–unless there is a
‘ “minimal connection” or “nexus” between the interstate activities and the taxing State, and
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“a rational relationship between the income attributed to the State and the intrastate values
of the enterprise.” ’ ” Container Corp. of America v. Franchise Tax Board, 463 U.S. 159,
165-66 (1983) (quoting Exxon Corp. v. Department of Revenue, 447 U.S. 207, 219-20
(1980), quoting Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 436, 437 (1980)).
“ ‘[A] corporation may have the “minimum contacts” with a taxing State as required by the
Due Process Clause, and yet lack the “substantial nexus” with that State as required by the
Commerce Clause.’ ” Brown’s Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 422 (1996)
(quoting Quill Corp. v. North Dakota, 504 U.S. 298, 313 (1992)). “At the very least, this set
of principles imposes the obvious and largely self-executing limitation that a State not tax
a purported ‘unitary business’ unless at least some part of it is conducted in the State.”
Container Corp., 463 U.S. at 166.
¶ 46 The Illinois Supreme Court in Brown’s Furniture considered what amount of physical
presence satisfied the nexus requirement under the commerce clause. The supreme court
observed that the United States Supreme Court in Quill found that the “slightest” physical
presence was not sufficient, but left unclear the extent of physical presence necessary to
establish a nexus. Brown’s Furniture, 171 Ill. 2d at 423.
¶ 47 The Illinois Supreme Court considered a decision from the Court of Appeals of New
York and concluded that it correctly stated the rule for a sufficient nexus.
“ ‘While a physical presence of the vendor is required, it need not be substantial. Rather,
it must be demonstrably more than a “slightest presence” [citation]. And it may be
manifested by the presence in the taxing State of the vendor’s property or the conduct of
economic activities in the taxing State performed by the vendor’s personnel or on its
behalf.’ ” Brown’s Furniture, 171 Ill. 2d at 424 (quoting Orvis Co. v. Tax Appeals
Tribunal, 654 N.E.2d 954, 961 (N.Y. 1995)).
See also Irwin Industrial, 238 Ill. 2d at 342.
¶ 48 Here, plaintiffs maintained more than the “slightest” presence in Illinois. Plaintiffs
operated several compressor stations in Illinois, employed Illinois residents at the compressor
stations, owned the land where the stations were located, and obtained permanent easements
for the pipelines’ path through Illinois. As plaintiffs admit in the stipulated facts, the
compressor stations recompressed the natural gas to move the gas through the pipelines and
the gas could not move without the pressure generated by the compressor stations. These
activities by plaintiffs were physically connected to Illinois and were sufficient to establish
a nexus between plaintiffs’ interstate activities and Illinois, as the taxing state.
¶ 49 We are not persuaded by plaintiffs’ reliance on Goldberg v. Sweet, 488 U.S. 252 (1989),
and United Air Lines, Inc. v. Mahin, 410 U.S. 623 (1973). Both cases are distinguishable
from the instant case. Neither case involved an apportioned income tax but, instead,
Goldberg considered a tax imposed on a consumer’s purchase of interstate calls, which the
Supreme Court found similar to a sales tax (Goldberg, 488 U.S. at 262), and Mahin involved
a use tax imposed on the purchase of aviation fuel based on the storage of fuel (Mahin, 410
U.S. at 627-28). Contrary to plaintiffs’ assertion, neither case sets forth an exception for
“traveling through a state” to be unable to establish a sufficient nexus. The Supreme Court
in Mahin upheld the imposition of a use tax on fuel held in Illinois, finding the taxable event
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to be storage, not consumption. Mahin, 410 U.S. at 631. In Goldberg, while the Supreme
Court observed that multiple taxation on interstate telecommunications was unlikely because
it doubted that “States through which the telephone call’s electronic signals merely pass have
a sufficient nexus to tax that call,” the question of whether a substantial nexus existed was
not raised because the parties agreed the nexus existed. Goldberg, 488 U.S. at 260, 263.
¶ 50 Plaintiffs also argue that the inclusion of the flow-through miles in the apportionment
factor is not fairly related to the services provided by the State, the fourth prong of the
Complete Auto test. “The purpose of this test is to ensure that a State’s tax burden is not
placed upon persons who do not benefit from services provided by the State.” Goldberg, 488
U.S. at 266-67.
“The tax which may be imposed on a particular interstate transaction need not be limited
to the cost of the services incurred by the State on account of that particular activity.
[Citation.] On the contrary, ‘interstate commerce may be required to contribute to the
cost of providing all governmental services, including those services from which it
arguably receives no direct “benefit.” ’ [Citation.] The fourth prong of the Complete Auto
test thus focuses on the wide range of benefits provided to the taxpayer, not just the
precise activity connected to the interstate activity at issue.” (Emphasis in original.)
Goldberg, 488 U.S. at 267 (quoting Commonwealth Edison Co. v. Montana, 453 U.S.
609, 627 n.16 (1981)).
The Supreme Court has found that “a taxpayer’s receipt of police and fire protection, the use
of public roads and mass transit, and the other advantages of civilized society satisfied the
requirement that the tax be fairly related to benefits provided by the State to the taxpayer.”
Goldberg, 488 U.S. at 267. “Complete Auto’s fourth criterion asks only that the measure of
the tax be reasonably related to the taxpayer’s presence or activities in the State.” Oklahoma
Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 200 (1995).
¶ 51 Plaintiffs agree that they have a tax liability to Illinois for the tax years, but assert that
they have paid for the services provided by Illinois by paying tax on the gas that originates,
terminates or originates and terminates in Illinois. In support, plaintiffs cite the decision in
American River Transportation Co. v. Bower, 351 Ill. App. 3d 208 (2004).
¶ 52 In that case, the plaintiff operated a line of tugboats on the Mississippi, Ohio and Illinois
Rivers. The fuel and supplies at issue in the case were loaded in St. Louis, Missouri. These
tugboats, called line haul vessels, spent 50% of their time pushing barges in Illinois waters,
but never docked in Illinois. Smaller harbor service tugs moved the barges between the line
haul vessels and Illinois ports. The harbor service tugs purchased fuel in Illinois and paid use
tax for the purchases. Bower, 351 Ill. App. 3d at 209-11.
¶ 53 In considering the burden to the commerce clause, the reviewing court found a substantial
nexus between Illinois and the tugboats. Bower, 351 Ill. App. 3d at 212. However, the court
concluded that the imposition of the use tax had no relation to any services supplied by
Illinois because Illinois provided no services to the line haul vessels, and the waterways were
maintained by United States. Bower, 351 Ill. App. 3d at 212. The court determined that the
plaintiff paid for the benefit of civilized society and clean waters in the payment of the use
tax for the harbor service tugs. Bower, 351 Ill. App. 3d at 212.
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¶ 54 Plaintiffs contend that Illinois has been compensated for the services it provides to
plaintiffs, but the flow-through miles, like the line haul vessels, do not have sufficient contact
with Illinois to warrant the inclusion in the numerator of the apportionment factor. However,
the Supreme Court has stated that the relevant inquiry is not “the amount of the tax the value
of the benefits allegedly bestowed as measured by the costs the State incurs on account of
the taxpayer’s activities.” Commonwealth Edison, 453 U.S. at 625. Instead, the test for the
fourth prong “imposes the additional limitation that the measure of the tax must be
reasonably related to the extent of the contact” because the activities or presence of the
taxpayer in the State may properly bear the tax burden. (Emphasis in original.)
Commonwealth Edison, 453 U.S. at 626.
¶ 55 We disagree with plaintiffs. Illinois provides services, such as police and fire protection,
public roads, and other advantages of civilized society, for all of plaintiffs’ presence in the
state. As previously discussed, plaintiffs operate several compressor stations across Illinois
to maintain the flow of the natural gas, staffed by Illinois employees, and on Illinois land
owned by plaintiffs. Unlike the line haul vessels in Bower, plaintiffs maintain a significant
presence in Illinois and enjoy the benefits that Illinois provides for its property and
operations in Illinois. Accordingly, we conclude that the inclusion of the flow-through miles
in the numerator of the apportionment factor pursuant to section 304(d)(2) is consistent with
the commerce clause.
¶ 56 Based on the foregoing reasons, we reverse the order of the circuit court of Cook County
and reinstate the decision of the Director accepting the recommendation of the administrative
law judge to deny the claimed income tax refunds.
¶ 57 Reversed.
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