Zilka, D., Aplt. v. Tax Review Bd. City of Phila. ( 2023 )

[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
DIANE ZILKA, : No. 20 EAP 2022
:
Appellant : Appeal from the Order of
: Commonwealth Court entered on
: January 7, 2022, at No. 1063 CD
v. : 2019 affirming the Order entered on
: June 26, 2019, in the Court of
: Common Pleas, Philadelphia
TAX REVIEW BOARD CITY OF : County, Civil Division at Nos. 02438
PHILADELPHIA, : and 02439, October Term 2018.
:
Appellee : ARGUED: March 7, 2023
DIANE ZILKA, : No. 21 EAP 2022
:
Appellant : Appeal from the Order of
: Commonwealth Court entered on
: January 7, 2022, at No. 1064 CD
v. : 2019 affirming the Order entered on
: June 26, 2019, in the Court of
: Common Pleas, Philadelphia
TAX REVIEW BOARD CITY OF : County, Civil Division at Nos. 02438
PHILADELPHIA, : and 02439, October Term 2018.
:
Appellee : ARGUED: March 7, 2023
CONCURRING OPINION
JUSTICE WECHT DECIDED: NOVEMBER 22, 2023
I agree that the tax scheme before us passes the internal consistency test as
applied in Comptroller of the Treasury of Maryland v. Wynne, 575 U.S. 542 (2015). I write
separately to explain that, while I discern some logical valence in Diane Zilka’s novel legal
argument, I am distinctly reluctant to expand upon the holding in Wynne given the protean
and unpredictable nature of the dormant Commerce Clause jurisprudence expounded by
the Supreme Court of the United States.1
Article I Section 8 of the United States Constitution grants Congress the power to
“regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes.”2 This represents a positive conferral of power to Congress. In addition,
the Supreme Court “consistently [has] held this language to contain a further, negative
command, known as the dormant Commerce Clause, prohibiting certain state taxation
even when Congress has failed to legislate on the subject.”3 This negative (or dormant)
Commerce Clause aims to prevent “a State from retreating into economic isolation or
jeopardizing the welfare of the Nation as a whole, as it would do if it were free to place
burdens on the flow of commerce across its borders that commerce wholly within those
borders would not bear.”4 The doctrine “‘reflect[s] a central concern of the Framers that
was an immediate reason for calling the Constitutional Convention: the conviction that in
order to succeed, the new Union would have to avoid the tendencies toward economic
Balkanization that had plagued relations among the Colonies and later among the States
under the Articles of Confederation.’”5
By the Supreme Court’s own admission, though, the dormant Commerce Clause’s
“command has been stated more easily than its object has been attained,” leading the
1 In this opinion, my discussion of “the Supreme Court” refers to the Supreme Court
of the United States, and not to this Supreme Court or the Supreme Court of any state.
2 U.S. CONST. art. I, § 8, cl. 3.
3 Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179 (1995)
(citations omitted).
4 Id. at 180.
5 Id. (quoting Hughes v. Oklahoma, 441 U.S. 322, 325-26 (1979)).
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 2
Court to revamp the doctrine many times.6 Early in the history of the dormant Commerce
Clause, “the Court held the view that interstate commerce was wholly immune from state
taxation ‘in any form[.]’”7 “This position gave way in time to a less uncompromising,” if
still “formal approach,” in which the Court would allow some taxes on interstate commerce
so long they were given the correct name.8 The Court eventually tired of this formal
approach too, abandoning it in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977),
which marks the beginning of the Court’s modern dormant Commerce Clause
jurisprudence.
The Complete Auto Court upheld a Mississippi privilege tax as applied to a
Michigan company that shipped automobiles to dealers in Mississippi. The Court
explained that:
Appellant’s attack is based solely on decisions of this Court holding that a
tax on the “privilege” of engaging in an activity in the State may not be
applied to an activity that is part of interstate commerce. See, e.g., Spector
Motor Service v. O’Connor, 340 U.S. 602 (1951); Freeman v. Hewit, 329
U.S. 249 (1946). This rule looks only to the fact that the incidence of the
tax is the “privilege of doing business”; it deems irrelevant any consideration
of the practical effect of the tax. The rule reflects an underlying philosophy
that interstate commerce should enjoy a sort of “free trade” immunity from
state taxation.9
6 Id. (remarking that “the Court’s understanding of the dormant Commerce Clause
has taken some turns”).
7 Id. (quoting Leloup v. Port of Mobile, 127 U.S. 640, 648 (1888), overruled by
Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (1995)).
8 Id. at 181 (recounting that “the Court would invalidate a state tax levied on gross
receipts from interstate commerce, or upon the ‘freight carried’ in interstate commerce,
but would allow a tax merely measured by gross receipts from interstate commerce as
long as the tax was formally imposed upon franchises, or ‘in lieu of all taxes upon [the
taxpayer’s] property[.]’” (internal citations omitted)); Di Santo v. Pennsylvania, 273 U.S.
34, 44 (1927) (Stone, J., dissenting) (calling the Court’s formal approach “too mechanical,
too uncertain in its application, and too remote from actualities, to be of value”).
9 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 278 (1977).
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 3
In upholding the Mississippi privilege tax, the Complete Auto Court stated: “We
note again that no claim is made that the activity is not sufficiently connected to the State
to justify a tax, or that the tax is not fairly related to benefits provided the taxpayer, or that
the tax discriminates against interstate commerce, or that the tax is not fairly
apportioned.”10 This has since become the controlling test to determine whether a state
tax violates the dormant commerce clause. Under Complete Auto, a state tax can be
levied on interstate commerce as long as the tax: (1) has a sufficient nexus with the state;
(2) is fairly apportioned; (3) does not discriminate against interstate commerce; and (4) is
related to services provided by the state.
Although it is often said that a tax is unconstitutional if it fails to meet any one prong
of the Complete Auto test, the Supreme Court’s recent precedent suggests that a levy
that theoretically could result in double taxation nonetheless may be constitutional if it
passes what is called the internal consistency test.11 The Supreme Court has explained
that:
Internal consistency is preserved when the imposition of a tax identical to
the one in question by every other State would add no burden to interstate
commerce that intrastate commerce would not also bear. This test asks
nothing about the degree of economic reality reflected by the tax, but simply
looks to the structure of the tax at issue to see whether its identical
application by every State in the Union would place interstate commerce at
a disadvantage as compared with commerce intrastate. A failure of internal
consistency shows as a matter of law that a State is attempting to take more
than its fair share of taxes from the interstate transaction, since allowing
10 Id. at 287.
11 Compare Zilka, 2022 WL 67789, at *3 (“Failure to meet any one prong [of the
Complete Auto test] renders the tax unconstitutional.”), with Wynne, 575 U.S. at 561-62
(“[T]he tax schemes held to be unconstitutional in [prior cases] had the potential to result
in the discriminatory double taxation of income earned out of state and created a powerful
incentive to engage in intrastate rather than interstate economic activity. Although we did
not use the term in those cases, we held that those schemes could be cured by taxes that
satisfy what we have subsequently labeled the ‘internal consistency’ test.”).
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 4
such a tax in one State would place interstate commerce at the mercy of
those remaining States that might impose an identical tax.12
In arguing that the tax scheme at issue here violates the internal consistency test,
Zilka relies on the Supreme Court’s decision in Wynne. The Maryland tax scheme at
issue in that case had two parts: a “state” income tax, which was set at a graduated rate,
and a so-called “county” income tax, which was set at a rate that varied by county but
was capped at 3.2%. In addition to these taxes, Maryland also taxed the income of
nonresidents who worked in the state. This nonresident tax also had two parts. First,
nonresidents paid the “state” income tax on all the income they earned from sources
within Maryland. Second, nonresidents were required to pay a “special nonresident tax”
in lieu of the “county” tax. The “special nonresident tax” was levied on income earned
from sources within Maryland, and its rate was equal to the lowest county income tax rate
set by any Maryland county.
Maryland residents who paid income tax to another jurisdiction for income earned
in that jurisdiction were allowed a credit against the Maryland “state” tax, but not the
“county” tax. Thus, part of the income that a Maryland resident earned outside of the
State could be taxed twice.
The Wynnes were Maryland residents who earned pass-through income from a
Subchapter S corporation that operated in thirty-nine states. When filing their Maryland
income taxes, the Wynnes claimed a credit for the taxes they paid in other states. The
Maryland State Comptroller of the Treasury allowed the Wynnes a credit against their
“state” income tax, but not against their “county” tax.
The Supreme Court held that Maryland’s tax scheme was unconstitutional, since
a portion of the taxpayer’s income tax burden (the “county” portion) could not be reduced
12 Jefferson Lines, Inc., 514 U.S. at 185.
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 5
by taxes paid in other jurisdictions. After applying the internal consistency test, the Court
concluded that the “Maryland scheme’s discriminatory treatment of interstate commerce
is not simply the result of its interaction with the taxing schemes of other States. Instead,
the internal consistency test reveals [that] Maryland’s tax scheme is inherently
discriminatory and operates as a tariff.”13 The Court illustrated proper application of the
internal consistency test as follows:
Assume that every State imposed the following taxes, which are similar to
Maryland’s “county” and “special nonresident” taxes: (1) a 1.25% tax on
income that residents earn in State, (2) a 1.25% tax on income that
residents earn in other jurisdictions, and (3) a 1.25% tax on income that
nonresidents earn in State. Assume further that two taxpayers, April and
Bob, both live in State A, but that April earns her income in State A whereas
Bob earns his income in State B. In this circumstance, Bob will pay more
income tax than April solely because he earns income interstate.
Specifically, April will have to pay a 1.25% tax only once, to State A. But
Bob will have to pay a 1.25% tax twice: once to State A, where he resides,
and once to State B, where he earns the income.14
The Court then modified its hypothetical to illustrate how the tax scheme would
satisfy the internal consistency test if it allowed credits.
[A]ssume that all States impose a 1.25% tax on all three categories of
income but also allow a credit against income taxes that residents pay to
other jurisdictions. In that circumstance, April (who lives and works in State
A) and Bob (who lives in State A but works in State B) would pay the same
tax. Specifically, April would pay a 1.25% tax only once (to State A), and
Bob would pay a 1.25% tax only once (to State B, because State A would
give him a credit against the tax he paid to State B).15
13 Wynne, 575 U.S. at 565.
14 Id. at 567-68.
15 Id. at 568.
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 6
Justice Antonin Scalia dissented in Wynne, calling the dormant Commerce Clause
“utterly illogical” and “a judicial fraud.”16 Expressing his disapproval of the doctrine,
Justice Scalia wrote:
The Court’s efforts to justify this judicial economic veto come to naught. The
Court claims that the doctrine “has deep roots.” So it does, like many
weeds. But age alone does not make up for brazen invention. And the
doctrine in any event is not quite as old as the Court makes it seem. The
idea that the Commerce Clause of its own force limits state power “finds no
expression” in discussions surrounding the Constitution’s ratification. F.
FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY AND WAITE
13 (1937). For years after the adoption of the Constitution, States
continually made regulations that burdened interstate commerce (like
pilotage laws and quarantine laws) without provoking any doubts about their
constitutionality. This Court’s earliest allusions to a negative Commerce
Clause came only in dicta—ambiguous dicta, at that—and were vigorously
contested at the time. Our first clear holding setting aside a state law under
the negative Commerce Clause came after the Civil War, more than 80
years after the Constitution’s adoption. Case of the State Freight Tax, 15
Wall. 232 (1873). Since then, we have tended to revamp the doctrine every
couple of decades upon finding existing decisions unworkable or
unsatisfactory. See Quill Corp. v. North Dakota, 504 U.S. 298, 309 (1992).
The negative Commerce Clause applied today has little in common with the
negative Commerce Clause of the 19th century, except perhaps for
incoherence.17
Justice Scalia also took aim at the internal consistency test, calling it an “exercise
in counterfactuals”18 and noting that the test:
bears no resemblance . . . to anything in the text or structure of the
Constitution. Nor can one discern an obligation of internal consistency from
our legal traditions, which show that States have been imposing internally
inconsistent taxes for quite a while—until recently with our approval. See,
e.g., General Motors Corp. v. Washington, 377 U.S. 436 (1964) (upholding
internally inconsistent business activities tax); Hinson v. Lott, 8 Wall. 148(1869) (upholding internally inconsistent liquor tax). No, the only
justification for the test seems to be that this Court disapproves of “‘cross-
16 Id. at 572 (Scalia, J., dissenting).
17 Id. at 572-73.
18 Id. at 574.
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 7
border tax disadvantage[s]’” when created by internally inconsistent taxes,
but is willing to tolerate them when created by “the interaction of . . .
internally consistent schemes.” Ante, at 1802.19
Justice Scalia’s observation that the internal consistency test does not prevent all
double taxation is especially relevant here inasmuch as the tax scheme before us passes
the internal consistency test yet still results in a state of affairs in which those who work
across state lines are taxed more heavily than those who do not. AS Justice Scalia
observed:
The one sure way to eliminate all double taxation is to prescribe uniform
national tax rules—for example, to allow taxation of income only where
earned. But a program of prescribing a national tax code plainly exceeds
the judicial competence. (It may even exceed the legislative competence
to come up with a uniform code that accounts for the many political and
economic differences among the States.) As an alternative, we could
consider whether a State’s taxes in practice overlap too much with the taxes
of other States. But any such approach would drive us “to the perplexing
inquiry, so unfit for the judicial department, what degree of taxation is the
legitimate use, and what degree may amount to an abuse of power.”
McCulloch v. Maryland, 4 Wheat. 316, 430 (1819). The Court today
chooses a third approach, prohibiting States from imposing internally
inconsistent taxes. Ante, at 1802. But that rule avoids double taxation only
in the hypothetical world where all States adopt the same internally
consistent tax, not in the real world where different States might adopt
different internally consistent taxes.20
As the Majority explains, Zilka argues that Wynne requires us to aggregate her
“state” and “local” tax burden before applying the internal consistency test in order to
19 Id. at 575.
20 Id. at 577. Justice Scalia concluded by saying that, “[f]or reasons of stare decisis,”
he would “vote to set aside a tax under the negative Commerce Clause if (but only if) it
discriminates on its face against interstate commerce or cannot be distinguished from a
tax this Court has already held unconstitutional.” Id. at 578. Justice Ruth Bader Ginsburg
also authored a dissent, which Justice Scalia and Justice Elena Kagan joined. Justice
Ginsburg wrote that “nothing in the Constitution or in prior decisions of this Court dictates
that one of two States, the domiciliary State or the source State, must recede simply
because both have lawful tax regimes reaching the same income.” Id. at 582 (Ginsburg,
J., dissenting).
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 8
determine whether the scheme as a whole discriminates against interstate commerce. In
support of that argument, Zilka relies heavily upon footnote eight in Wynne, where the
Court stated:
to apply the internal consistency test in this case, we must evaluate the
Maryland income tax scheme as a whole. That scheme taxes three
separate categories of income: (1) the “county tax” on income that Maryland
residents earn in Maryland; (2) the “county tax” on income that Maryland
residents earn in other States; and (3) the “special nonresident tax” on
income that nonresidents earn in Maryland. For Commerce Clause
purposes, it is immaterial that Maryland assigns different labels (i.e., “county
tax” and “special nonresident tax”) to these taxes. In applying the dormant
Commerce Clause, they must be considered as one. Cf. Oregon Waste
Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93,
102-03 (1994) (independent taxes on intrastate and interstate commerce
are “compensatory” if they are rough equivalents imposed upon
substantially similar events). If state labels controlled, a State would always
be free to tax domestic, inbound, and outbound income at discriminatory
rates simply by attaching different labels.21
Citing this language, Zilka contends that Pennsylvania’s income tax and
Philadelphia’s wage tax “must be considered as one” so that “the total tax burden upon
interstate commerce” can be evaluated.22 In other words, looking at it Zilka’s way,
Philadelphia residents do not pay a 3.07% Pennsylvania income tax and a 3.92%
Philadelphia wage tax; rather, they pay a total “state” tax of 6.99%. Similarly, those who
work or live in Wilmington in essence pay a total “state” tax of 6.25%, even though 1.25%
of that tax is collected by the City of Wilmington.
21 Id. at 564 n.8 (emphasis added).
22 Brief for Zilka at 8 (emphasis omitted). Zilka also cites case law which suggests
that, constitutionally speaking, all “local” or “county” taxes are just state taxes by another
name, since all taxing authority initially resides with the state government. See id. at 11
(citing Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907) (“Municipal corporations
are political subdivisions of the state, created as convenient agencies for exercising such
of the governmental powers of the state as may be instructed by them.”)).
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 9
Zilka relies upon the scholarship of University of Georgia Law School professor
Walter Hellerstein, who argues that the internal consistency test requires courts to
evaluate the total aggregate state and local tax burden in Commerce Clause cases, since
all taxes in some sense are “state” taxes regardless of what the state calls them or how
they are collected. Like Zilka, Professor Hellerstein believes that the Commonwealth
Court’s decision below was incorrect because the court failed to recognize that “all
exercises of state taxing authority affecting cross-border economic activity (whether
denominated state or local taxes under the taxing regime) should be evaluated at the
state level and in light of the state’s tax structure as a whole.”23 According to Professor
Hellerstein:
Because political subdivisions of a state are creatures of the state, their
exercises of tax power are treated as the exercise of state tax power and
adjudicated according to the standards restraining the exercise of state tax
power. In short, the fact that the state tax power is exercised by a political
subdivision of the state rather than by the state itself is of no constitutional
moment. Indeed, many of the decisions delineating the constitutional
limitations on ‘state’ taxation affecting cross-border economic activity
involve local taxes.24
I agree with the Majority that the internal consistency test, as articulated in Wynne,
does not mandate the sort of state-level aggregation that Professor Hellerstein
describes.25 I note that the Wynne Court itself did not focus its analysis on Maryland’s
23 Walter Hellerstein, Are State and Local Taxes Constitutionally Distinguishable?
(Revised), TAX NOTES STATE, Vol. 103 at 755 (Feb. 14, 2022) (arguing that “the
Pennsylvania Commonwealth Court’s analysis in Zilka is fundamentally flawed because
it fails to examine the constitutional issues, particularly the commerce clause’s internal
consistency doctrine, at the state level.”) (footnote omitted).
24 JEROME R. HELLERSTEIN & WALTER HELLERSTEIN, STATE TAXATION, ¶20.10; see
Hellerstein, Are State and Local Taxes Constitutionally Distinguishable? (Revised), at 748
(“[T]axes imposed by a ‘county, city, or other locality’ must be evaluated as a tax at the
state level and in light of the state’s tax structure as a whole.”).
25 See Majority Opinion at 23.
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 10
aggregate state and local tax burden. Rather, the Court mostly ignored the “state” portion
of Maryland’s tax scheme (which did allow credits) and emphasized the “county” and
“special nonresident” taxes (which did not allow credits).26 So if Zilka is correct that the
Wynne Court held that the “state and local income tax burden must be considered
together,”27 one wonders why the Wynne Court didn’t consider the Maryland taxes
together.
In fact, there would have been no need for the Wynne Court to aggregate the
Maryland taxes, since the Court believed that the scheme was unconstitutional on its face
given the lack of credits. In the Wynne Court’s telling, the issue with the scheme was that
the “county” portion of the Maryland tax and the equivalent tax on nonresidents did not
give taxpayers a credit for local taxes that they paid to another jurisdiction. And if every
state enacted an identical scheme, some taxpayers inevitably would be double-taxed.
The Wynne Court even said point blank that “Maryland could remedy the infirmity in its
tax scheme by offering, as most States do, a credit against income taxes paid to other
States . . . . If it did, Maryland’s tax scheme would survive the internal consistency test
and would not be inherently discriminatory.”28
Here, though, if every state adopted a scheme exactly like the one before us—with
a 3.07% Tax A and a 3.92% Tax B, each of which gives credits for identical taxes paid
elsewhere—those who live in one state and work in another would not be double-taxed,
as one state’s taxes will always be offset by credits for taxes paid to the other state. Thus,
the tax scheme before us passes the internal consistency test as the United States
Supreme Court has articulated it. Zilka did not pay more in taxes than Philadelphia
26 Wynne, 575 U.S. at 567-68.
27 Brief for Zilka at 9.
28 Wynne, 575 U.S. at 568.
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 11
residents who work in-state because Pennsylvania’s tax scheme is internally inconsistent.
Rather, she paid more in taxes because Pennsylvania and Delaware each have different,
internally consistent tax schemes.29
Doctrinally speaking, this occurs because the United States Supreme Court’s
internal consistency test does not prevent all taxes that burden interstate commerce.
Instead, the test:
avoids double taxation only in the hypothetical world where all States adopt
the same internally consistent tax, not in the real world where different
States might adopt different internally consistent taxes. For example, if
Maryland imposes its income tax on people who live in Maryland regardless
of where they work (one internally consistent scheme), while Virginia
imposes its income tax on people who work in Virginia regardless of where
they live (another internally consistent scheme), Marylanders who work in
Virginia still face double taxation.30
While I agree with the Majority’s decision not to adopt Zilka’s aggregation theory
for purposes of the internal consistency test, I acknowledge the very real possibility that
the Supreme Court will modify its precedent in this area, as it has many times throughout
history.31 Indeed, this case may be worthy of certiorari so that the Court can consider
whether the internal consistency test should be applied as a state-level inquiry, as Zilka
and Professor Hellerstein suggest. I concede that, without some form of state-level
29 Jefferson Lines, Inc., 514 U.S. at 185 (“Internal consistency is preserved when the
imposition of a tax identical to the one in question by every other State would add no
burden to interstate commerce that intrastate commerce would not also bear.”) (emphasis
added); see Zilka, 2022 WL 67789, at *6 (“Although we understand that [Zilka] pays more
than her intrastate counterparts, such is not the result of an unconstitutional tax scheme.
Rather, it is simply the ‘result of the interaction of two different but nondiscriminatory and
internally consistent schemes.’”).
30 Wynne, 575 U.S. at 577 (Scalia, J., dissenting) (emphasis omitted); id. (“Then
again, it is only fitting that the Imaginary Commerce Clause would lead to imaginary
benefits.”).
31 Jefferson Lines, Inc., 514 U.S. at 180 (conceding, somewhat euphemistically, that
the Court’s dormant Commerce Clause jurisprudence “has taken some turns”).
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 12
aggregation, a state potentially could avoid providing full credits to its residents for taxes
paid to other states on income earned in the other states by authorizing cities or political
subdivisions to impose a portion of the tax directly. And allowing the result in any one
case to hinge on whether a given tax is labeled state, local, county, city, or non-resident
is reminiscent of the unworkable formalism that the Court’s modern dormant Commerce
Clause cases have eschewed since Complete Auto.32
Nevertheless, I believe that the task of modifying this doctrine (if at all) should be
left for the Court that invented it in the first place. While it is generally the case that state
courts “should proceed cautiously when asked to be the engine of innovation in federal
constitutional law,”33 the concerns here are even more acute because the dormant
Commerce Clause rests on an unstable foundation seemingly unmoored from any
discernible legal principle.34 Because I am not confident in my ability to predict the next
twist or turn in the Supreme Court’s ever-changing dormant Commerce Clause
jurisprudence, I join the Majority’s decision affirming the Commonwealth Court and
distinguishing the challenged tax scheme from the one at issue in Wynne.
32 See Jefferson Lines, Inc., 514 U.S. at 181 (discussing the Court’s pre-Complete
Auto formalist approach, which was “too mechanical, too uncertain in its application, and
too remote from actualities, to be of value”) (citation omitted); cf. Wynne, 575 U.S. at 565
n.8 (“If state labels controlled, a State would always be free to tax domestic, inbound, and
outbound income at discriminatory rates simply by attaching different labels.”).
33 Commonwealth v. Molina, 104 A.3d 430, 458 (Pa. 2014) (Castille, C.J.,
dissenting).
34 Wynne, 575 U.S. at 575 (Scalia, J., dissenting) (“Because no principle anchors our
development of this doctrine—and because the line between wise regulation and
burdensome interference changes from age to economic age—one can never tell when
the Court will make up a new rule or throw away an old one.”); Am. Trucking Associations,
Inc. v. Smith, 496 U.S. 167, 203 (1990) (Scalia, J., concurring) (remarking that “[c]hange
is almost [the doctrine’s] natural state”).
[J-5A-2023 and J-5B-2023] [MO: Todd, C.J.] - 13