CHASE BRASS AND COPPER CO v. FRANCHISE TAX BOARD (1970)

OPINION ON DENIAL OF PETITION FOR REHEARING

This is in response to requests by the parties for further rulings and explanation:

1. The formulary taxation procedure is not in itself a simultaneous process of taxing and of disregarding the separate entity of the taxed corporation. (Edison California Stores v. McColgan, 30 Cal.2d 472, 481, 183 P.2d 16.)

2. We do not regard the case of Norfolk & Western Ry. Co. v. Missouri State Tax Comm., 390 U.S. 317, 88 S.Ct. 995, 19 L.Ed.2d 1201, to be decisive or even relevant to the case at hand. In the Norfolk case, the railroad was able to show, by actual count of its rolling stock on the lien date, that the number of units within Missouri was substantially less than that which had been assumed by the taxing authorities, and that a certain “enhanced value” theory proposed by the taxing authorities would require a challenge to a total value figure which had been agreed upon. The case is far removed from the present one, wherein the operations of the corporations are unitary and separate accounting is not permitted.

3. Since the formula must be recomputed, the special issues relating thereto, which our opinion has not resolved, are to be presented to and tried by the trial court (the subject of the gold, silver and molybdenum operations, however, has been decided by our opinion).

The petition for rehearing is denied.

PER CURIAM.