FERRELLGAS PARTNERS, LP VS. DIRECTOR, DIVISION OF TAXATION (TAX COURT OF NEW JERSEY)

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3904-18T1 FERRELLGAS PARTNERS, LP, Plaintiff-Appellant, v. DIRECTOR, DIVISION OF TAXATION, Defendant-Respondent. _____________________________ Argued December 16, 2020 – Decided January 13, 2021 Before Judges Sumners and Geiger. On appeal from the Tax Court of New Jersey, Docket No. 7051-2014. Kyle O. Sollie argued the cause for appellant (Reed Smith LLP and Jonathan E. Maddison (Reed Smith LLP) of the Pennsylvania bar, admitted pro hac vice, attorneys; Jonathan E. Maddison and Kyle O. Sollie, on the briefs). Michael J. Duffy, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Michael J. Duffy, on the briefs). Vinson & Elkins, LLP, and Clifford Thau, Marisa Antos-Fallon, and Bryan Hogg, (Vinson & Elkins, LLP) of the New York bar, admitted pro hac vice, attorneys for amicus curiae Energy Infrastructure Council (George C. Hopkins, Clifford Thau, Marisa Antos-Fallon, and Bryan Hogg on the brief). PER CURIAM Plaintiff Ferrellgas Partners, L.P. appeals from December 7, 2018 and April 1, 2019 Tax Court orders granting partial summary judgment to defendant Director of the Division of Taxation (Division), upholding the denial of a refund of the partnership filing fees (PFF) that plaintiff paid for tax years 2009 through 2011. We affirm. N.J.S.A. 54A:8-6(b)(2)(A) requires "[e]ach entity classified as a partnership for federal income tax purposes," that has more than two owners, "having any income derived from New Jersey sources," to pay "a filing fee of $150 for each owner with an interest in the entity, up to a maximum of at $250,000," when filing its informational tax return. Because it had more than 67,000 owners, plaintiff paid the maximum $250,000 PFF for tax years 2009 through 2011. A-3904-18T1 2 Plaintiff challenges the constitutionality of the PFF, arguing it violates the Dormant Commerce Clause (DCC) of the United States Constitution because it is not fairly apportioned and discriminates against interstate commerce, and is not internally consistent.1 It further contends that the PFF is a tax, not a uniform regulatory fee, imposed on interstate commerce, that does not satisfy the internal consistency standard. Plaintiff argues that this court should remand to the Tax Court to cure these constitutional defects through three-factor apportionment. The Statutory and Regulatory Framework An entity "classified as a partnership for federal income tax purposes" is required to file an informational tax return setting forth all items of income and loss if the entity has "a resident owner" or "any income derived from New Jersey sources." N.J.S.A. 54A:8-6(b)(1). The return must identify the "name and address of each partner, member, or other owner of an interest in the entity however designated." Ibid. 1 The Commerce …

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