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Southern California Edison Company v. Nevada Department of Taxation

Paid petition · Supreme Court of Nevada, No. No. 67497 · judgment July 27, 2017


Certiorari denied · January 16, 2018
Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

In McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, Department of Business Regulation, this Court held that a taxpayer is entitled to meaningful post-deprivation relief when it has paid taxes found to discriminate against interstate commerce in violation of the dormant Commerce Clause. 496 U.S. 18, 31 (1990). In General Motors Corp. v. Tracy, this Court elaborated that the “notion of discrimination” with which the dormant Commerce Clause is concerned “assumes a comparison of substantially similar entities.” 519 U.S. 278, 298 (1997). Twenty years later, the lower courts are sharply divided over what a taxpayer must prove to show that a state law discriminates against interstate commerce in a way that favors one “substantially similar” entity over the other and therefore entitles the disfavored party to a remedy. The question presented is: Whether proof that a tax scheme violates the dormant Commerce Clause by favoring in-state interests over out-of-state interests, and thereby advantages some competitors over others within the same market, is sufficient to entitle the disfavored competitors to a remedy?

Counsel of record

For petitioner
Gregory George Garre
Latham & Watkins LLP

For respondent
Lawrence J. C. Van Dyke
Office of the Nevada Attorney General

Case

Conference history
Distributed for 1 conference

Linked docket
17A385

Proceedings

  1. Jan 16 2018
    Petition DENIED.
  2. Dec 27 2017
    DISTRIBUTED for Conference of 1/12/2018.
  3. Dec 14 2017
    Waiver of right of respondent State of Nevada Department of Taxation to respond filed.
  4. Nov 21 2017
    Petition for a writ of certiorari filed. (Response due December 21, 2017)
  5. Oct 10 2017
    Application (17A385) granted by Justice Kennedy extending the time to file until November 21, 2017.
  6. Oct 06 2017
    Application (17A385) to extend the time to file a petition for a writ of certiorari from October 25, 2017 to November 21, 2017, submitted to Justice Kennedy.