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Conagra Foods RDM, Inc. v. Comptroller of Treasury

Court of Special Appeals of Maryland

June 27, 2019

CONAGRA FOODS RDM, INC.
v.
COMPTROLLER OF THE TREASURY

          Circuit Court for Anne Arundel County Case No. C-02-CV-15-000993

          Arthur, Leahy, [*] Woodward, JJ. [**]

          OPINION

          Woodward, J.

         Appellant, ConAgra Foods RDM, Inc., formerly known as ConAgra Brands, Inc. ("Brands"), [1] is an intellectual property holding company and a direct and indirect wholly owned subsidiary of ConAgra Foods, Inc., formerly known as ConAgra, Inc. ("ConAgra"). Brands was incorporated in 1996 in Nebraska and has a principal office in Omaha, Nebraska. During the time period of 1996 through 2003, ConAgra conducted business operations in Maryland and filed corporation income tax returns in Maryland. For the same time period, Brands did not file any Maryland corporation income tax returns. Because Brands received royalties from ConAgra, [2] appellee, the Comptroller of the Treasury ("Comptroller"), on August 30, 2007, assessed Brands $2, 768, 588 in back taxes, interest, and penalties for the tax years of 1996 through 2003. Brands appealed this assessment, and the Comptroller affirmed by issuing a Notice of Final Determination on January 23, 2009.

         On February 23, 2009, Brands appealed to the Tax Court. After a hearing, the Tax Court ruled, in a Memorandum of Grounds for Decision dated February 24, 2015, that Brands lacked economic substance as a business entity separate from ConAgra and thus allowed the Comptroller to impose the tax assessment. The Tax Court, however, abated the interest accrued from the date of the appeal to that court to the date of its decision, and all penalties. Brands and the Comptroller filed petitions for judicial review in the Circuit Court for Anne Arundel County, which resulted in the court affirming the Tax Court's decision, except for the latter's abatement of interest accruing from March 24, 2014 to February 24, 2015. Brands then filed this timely appeal.

         Brands presents eight questions for our review, which we have rephrased and condensed into three:[3]

1. Was there substantial evidence to support the Tax Court's ruling that Brands lacked economic substance as a business entity separate from ConAgra and thus had the constitutionally required nexus and minimum contacts with Maryland to subject Brands to income taxation by Maryland for the royalties received by Brands from ConAgra and its subsidiaries arising out of the latters' business activities in Maryland?
2. Was there substantial evidence to support the Tax Court's ruling that the Comptroller had the statutory authority to use a blended apportionment formula to determine Brands's Maryland income and that the blended apportionment formula clearly reflected Brands's income allocable to Maryland?
3. Did the Tax Court properly interpret the tax statute when it waived interest on the income tax due from Brands that accrued from the date of the filing of its appeal to the Tax Court (February 23, 2009) to the date of the issuance of that court's decision (February 24, 2015)?

         For the reasons set forth below, we uphold the decision of the Tax Court in all respects and thus affirm in part and reverse in part the judgment of the circuit court.

         BACKGROUND

         ConAgra is a conglomerate known for its agricultural products and products in the processed food industry including, but not limited to, Hunts, Orville Redenbacher, Butterball Turkey, and ACT II. In the late 1990s, ConAgra had multiple wholly owned subsidiaries (also known as independent operating companies), including Swift-Eckrich, Inc., Hunt-Wesson, Inc., and Beatrice Cheese, Inc. The multitude of ConAgra's wholly owned subsidiaries began to present management problems for ConAgra, and in 1996, ConAgra began a program focused on corporate centralization.

         One such centralization initiative occurred in April 1996 when ConAgra decided to centralize management of the intellectual property owned by it and its subsidiaries. To effectuate this goal, ConAgra incorporated Brands in Nebraska. Brands issued 2, 207 shares of common stock, distributing 1, 000 shares to ConAgra, 594 shares to Swift-Eckrich, Inc, 560 shares to Hunt-Wesson, Inc., and 53 shares to Beatrice Cheese, Inc. In exchange, Brands acquired forty-six initial trademark groups and subsequently acquired numerous other trademark groups from these entities. Brands then entered into license agreements for the trademark groups with ConAgra and the three subsidiaries, under which ConAgra and these subsidiaries paid Brands royalties.[4]

         From 1996 to 2003, Brands did not file Maryland tax returns, but ConAgra and some of its subsidiaries did file Maryland tax returns. After an audit, the Comptroller sent Brands a "Notice and Demand to File Maryland Corporation Income Tax Returns" in 2007. When Brands did not respond to the Comptroller's notice and demand, the Comptroller issued a "Notice of Assessment" for the tax years of 1996 to 2003 for a total of $2, 768, 588 in back taxes, interest, and penalties as of August 30, 2007. Upon Brands's request, an administrative appeal was held on December 4, 2007, concerning the Comptroller's assessment. On January 23, 2009, the Comptroller issued a "Notice of Final Determination[, ]" concluding that Brands then owed $3, 053, 222 in back taxes, interest, and penalties. Brands filed a timely Petition of Appeal to the Tax Court on February 23, 2009.

         After a two-day hearing concluding on October 7, 2010, the Tax Court issued its opinion upholding the Comptroller's assessment on February 24, 2015. The Tax Court stated that the "initial inquiry [was] to determine whether [Brands] had real economic substance as a business separate from ConAgra." Citing to Comptroller v. SYL, Inc., 375 Md. 78, cert. denied, 540 U.S. 984 and cert. denied, 540 U.S. 1090 (2003) and Gore Enter. Holdings, Inc. v. Comptroller, 437 Md. 492 (2014), the Tax Court observed that, under the economic substance doctrine set forth in those cases, an out-of-state subsidiary "must have economic substance as a separate entity from its parent to avoid nexus and taxation." After a review of the evidence before it, the court concluded that Brands lacked any economic substance separate from ConAgra. Because a portion of Brands's income was produced from the business of ConAgra and its subsidiaries in Maryland, the court held that there was sufficient nexus to support the income taxation of Brands.

         The Tax Court then considered whether the Comptroller applied an appropriate apportionment formula in calculating the income tax that Brands owed to Maryland. The Tax Court determined that the Comptroller's blended apportionment formula was permissible, because "the Comptroller effectively utilized ConAgra's own apportionment figures in constructing the blended apportionment factor used in this case."[5] Finally, the Tax Court abated the interest accruing after the date of filing the appeal to the Tax Court (February 23, 2009) to the date of the Tax Court's decision (February 24, 2015), and all penalties.[6]

         On March 17, 2015, Brands filed a petition for judicial review in the circuit court challenging the Tax Court's ruling that it was subject to Maryland tax, as well as the Comptroller's apportionment formula. The Comptroller filed a cross-petition for judicial review challenging the Tax Court's decision to abate all interest accruing from the date of filing the appeal with the Tax Court to the issuance of that court's decision. After a hearing on September 21, 2015, the circuit court issued an opinion and order on October 30, 2015, affirming the Tax Court in all respects, except for the latter's abatement of interest accruing from March 24, 2014 to February 24, 2015.[7]

         Brands filed this timely appeal. Additional facts will be set forth below as they become necessary to the resolution of the questions presented in this appeal.

         STANDARD OF REVIEW

         The Tax Court is an adjudicatory administrative agency; "our review looks through the circuit court's . . . decision[ ] . . . and evaluates the decision of the agency." Gore, 437 Md. at 503 (some alterations in original) (internal quotation marks omitted). The Court of Appeals has further explained our review of a decision of the Tax Court as follows:

An administrative agency's findings of fact must meet the substantial evidence standard. Frey [v. Comptroller, ] 422 Md. [111, ] [ ] 137, 29 A.3d [475, ] [ ] 490 (citations omitted). Thus, we determine "'whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.'" Frey, 422 Md. at 137, 29 A.3d at 490 (quoting State Ins. Comm'r v. Nat'l Bureau of Cas. Underwriters, 248 Md. 292, 309, 236 A.2d 282, 292 (1967)). It is not our place to "make an independent original estimate of our decision on the evidence.... [or determine for ourselves], as a matter of first instance, the weight to be accorded to the evidence before the agency." In Ramsay Scarlett & Co., Inc. v. Comptroller of the Treasury, 302 Md. 825, 838, 490 A.2d 1296, 1303 (1985) (citations omitted), we cautioned:

[T]hat a reviewing court may not substitute its judgment for the expertise of the agency; that we must review the agency's decision in the light most favorable to it; that the agency's decision is prima facie correct and presumed valid; and that it is the agency's province to resolve conflicting evidence and where inconsistent inferences can be drawn from the same evidence it is for the agency to draw the inferences.

         Ramsay, 302 Md. at 834-35, 490 A.2d at 1301 (citations omitted)."[T]he interpretation of the tax law can be a mixed question of fact and law, the resolution of which requires agency expertise." Comptroller of the Treasury v. Citicorp Int'l Commc'ns, Inc., 389 Md. 156, 164, 884 A.2d 112, 116-17 (2005) (citing NCR Corp. v. Comptroller, 313 Md. 118, 133-34, 544 A.2d 764, 771 (1988)). In reviewing mixed questions of law and fact, "we apply 'the substantial evidence test, that is, the same standard of review [we] would apply to an agency factual finding.'" Comptroller of the Treasury v. Science Applications Intern. Corp., 405 Md. 185, 193, 950 A.2d 766, 770 (2008) (quoting Longshore v. State, 399 Md. 486, 522 n. 8, 924 A.2d 1129, 1149 n. 8 (2007)).

The legal conclusions of an administrative agency that are "premised upon an interpretation of the statutes that the agency administers" are afforded "great weight." Frey, 422 Md. at 138, 29 A.3d at 490 (citations omitted). Agency decisions premised upon case law, however, are not entitled to deference. Frey, 422 Md. at 138, 29 A.3d at 490 ("When an agency's decision is necessarily premised upon the 'application and analysis of caselaw,' that decision rests upon 'a purely legal issue uniquely within the ken of a reviewing court.'" (quoting [People's Counsel for Baltimore Cty. v.] Loyola College [in Md.], 406 Md. [54, ] [ ] 67-68, 956 A.2d [166, ] [ ] 174 [2008])).

Id. at 504-05 (some alterations in original).

         DISCUSSION

         I. Taxation and the United States Constitution

         For a state to tax a non-domiciliary company, like Brands, such taxation must withstand constitutional scrutiny under the Due Process and Commerce Clauses of the United States Constitution. Gore, 437 Md. at 506-07. The satisfaction of these constitutional restrictions on government action have different purposes and requirements, but these clauses also have "significant parallels." South Dakota v. Wayfair, Inc., 138 S.Ct. 2080, 2093 (2018).

         The Due Process Clause imposes restrictions on the government to act in a fair manner and provide "fair warning." Gore, 437 Md. at 507. Under the Due Process Clause, there are "two requirements: [1] a 'minimal connection' between the interstate activities and the taxing State, and [2] a rational relationship between the income attributed to the State and the intrastate values of the enterprise." Mobil Oil Corp. v. Comm'r of Taxes of Vermont, 445 U.S. 425, 436-37 (1980).

          The Commerce Clause, on the other hand,

was designed to prevent States from engaging in economic discrimination so they would not divide into isolated, separable units. See Philadelphia v. New Jersey, 437 U.S. 617, 623, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). But it is "not the purpose of the [C]ommerce [C]lause to relieve those engaged in interstate commerce from their just share of state tax burden." Complete Auto [Transit, Inc. v. Brady, 430 U.S. 274, 288 (1977)] (internal quotation marks omitted).

Wayfair, 138 S.Ct. at 2093-94 (alterations in original). The Commerce Clause requires that a tax "(1) appl[y] 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 the State provides." Id. at 2091. The first prong of the Commerce Clause "test simply asks whether the tax applies to an activity with a substantial nexus with the taxing State. [S]uch a nexus is established when the taxpayer [or collector] avails itself of the substantial privilege of carrying on business in that jurisdiction." Id. at 2099 (alterations in original) (internal citation and quotation marks omitted). In holding that such nexus can be satisfied through "economic and virtual contacts," the Court overturned its previous precedent of requiring that a company have physical presence within the State imposing taxation, and in so doing, moved the nexus requirement in the Commerce Clause and the Due Process Clause requirement of minimal contacts into closer alignment. See id. at 2092-93 ("This nexus requirement is closely related to the due process requirement that there be some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax." (internal citation and quotation marks omitted)).

          II. Lack of Economic Substance as a Separate Entity

         In the instant case, Brands is an out-of-state direct and indirect wholly owned subsidiary of ConAgra. During the tax years in question, Brands received royalties under the trademark license agreements from ConAgra and its subsidiaries, a portion of which was derived from the business activities of ConAgra and its subsidiaries in Maryland. In SYL and Gore, the Court of Appeals held that the constitutional requirements for state taxation of out-of-state wholly owned subsidiary corporations are satisfied where the subsidiaries "'had no real economic substance as separate business entities.'" Gore, 437 Md. at 513-14 (quoting SYL, 375 Md. at 106) (bold emphasis in Gore). In other words, the Due Process Clause requirement of "minimum contacts" and the Commerce Clause requirement of "nexus" are satisfied for such subsidiaries "'based upon their parent corporations' Maryland business[.]'" Gore, 437 Md. at 514 (alteration in original) (quoting SYL, 375 Md. at 109). Therefore, the central issue raised in the instant case is whether Brands had real economic substance as a business entity separate from ConAgra. To resolve this issue, we must begin with a close examination of SYL and Gore.

         A. SYL

         In SYL, the Court of Appeals consolidated two cases in which the Comptroller assessed Maryland taxes against foreign intellectual property holding companies that were wholly owned subsidiaries of parent companies doing business in Maryland. 375 Md. at 80-81, 92.

         The first case involved the clothing company Syms, Inc. ("Syms"). Id. at 81. Syms created a wholly owned subsidiary, SYL, Inc. ("SYL"), and incorporated this subsidiary in Delaware. Id. Syms then transferred all of its intellectual property to SYL, and "SYL granted to Syms a license to manufacture, use and sell the products covered by the trade names and trademarks in [Syms]'s business[.]" Id. SYL received royalties pursuant to its license agreement with Syms, and SYL, in turn, would issue dividends to Syms - the owner of all of SYL's stock. Id. at 81, 86. Although Syms filed Maryland corporation income tax returns, SYL did not, and in 1996, the Comptroller issued an assessment against SYL "for the years 1986 through 1993 [in the] amount of $637, 362 in corporate income taxes, including interest and penalties." Id. at 81.

         The companion case involved Crown Cork & Seal Company (Delaware) ("Crown Delaware"). Id. at 92. Crown Delaware was a wholly owned subsidiary of Crown Cork & Seal Company, Inc. ("Crown Parent"), which was "a corporation engaged in the manufacturing and sale of metal cans, crowns, and closures for bottles, can-filling machines, and plastic bottles and containers, world-wide, including in the State of Maryland." Id. (internal quotation marks omitted). Crown Delaware was a Delaware corporation created by Crown Parent to manage its intellectual property, and Crown Delaware acquired "thirteen domestic patents and sixteen trademarks" from Crown Parent. Id. "Crown Delaware then granted to Crown Parent an exclusive license . . . [and] Crown Parent agreed to pay Crown Delaware a royalty based on Crown Parent's sales." Id. at 94. Then, Crown Delaware would provide Crown Parent with loans, sometimes the same day as it received royalties from Crown Parent. Id. at 96. Like SYL and Syms, Crown Delaware did not file corporation income tax returns in Maryland, but Crown Parent did. Id. at 92. The Comptroller issued an assessment against Crown Delaware for $1, 421, 034 in back taxes including interest and penalties, for the years 1989 through 1993. Id.

         SYL and Crown Delaware took separate appeals to the Tax Court. Id. at 84, 93. In separate decisions, the Tax Court concluded that Maryland did not have the authority to tax SYL and Crown Delaware, because both companies were not completely shell corporations and neither had a sufficient nexus with Maryland. Id. at 88-90, 98-99. The Comptroller appealed both cases, and the circuit court upheld the Tax Court in separate rulings. Id. at 91, 99. Again, the Comptroller appealed, but before the appeals were heard by this Court, the Court of Appeals granted the petitions for a writ of certiorari. Id.

         On appeal, the Court of Appeals examined this Court's opinion in Comptroller v. Armco Exp. Sales Corp., 82 Md.App. 429, cert. denied, 320 Md. 634 (1990), and cert. denied, 498 U.S. 1088 (1991). SYL, 375 Md. at 103-05. In that case, this Court considered whether Maryland had the authority to tax three subsidiaries created by Armco, Inc., General Motors, and Thiokol. Id. at 103. These subsidiaries were known as "Domestic International Sales Corporation[s] or DISC[s, ]" and their sole purpose was to buy goods from their respective parents and then resell the goods to overseas customers, incurring for the parent a federal tax benefit. Id. at 103-04. This Court held that Maryland could tax the income of the DISCs. Id. at 105. We noted that the parent companies conducted business in Maryland. Id. at 104. We also noted that the DISCs relied completely on their respective parent corporations, because each DISC had "no tangible property or employees and c[ould] only conduct its activity and do business through branches of its unitary affiliated parent." Id. (internal quotation marks omitted).

          The Court of Appeals adopted our Armco reasoning and applied it to SYL and Crown Delaware. Id. at 106. The Court noted that SYL and Crown Delaware resembled the DISC corporations in Armco, "except that SYL and Crown Delaware had a touch of 'window dressing' designed to create an illusion of substance." Id. The Court continued:

Neither subsidiary had a full time employee, and the ostensible part time "employees" of each subsidiary were in reality officers or employees of independent "nexus-service" companies. The annual wages paid to these "employees" by the subsidiaries were minuscule. The so-called offices in Delaware were little more than mail drops. The subsidiary corporations did virtually nothing; whatever was done was performed by officers, employees, or counsel of the parent corporations. The testimony indicated that, with respect to the operations of the parents and the protections of the trademarks, nothing changed after the creation of the subsidiaries. Although officers of the parent corporations may have stated that tax avoidance was not the sole reason for the creation of the subsidiaries, the record demonstrates that sheltering income from state taxation was the predominant reason for the creation of SYL and Crown Delaware.

Id. (Emphasis added).

         Indeed, the undisputed record revealed that SYL was completely dependent on Syms for income, and all income was returned to Syms in the form of dividends. Id. at 84, 86. SYL's Board of Directors were all officers of Syms, except that one Board member, Edward Jones, was an accountant employed by the firm Gunnip and Company - a firm SYL hired to provide services, such as a mailing address, and to establish a presence in Delaware. Id. at 86-87. Daily expenses at SYL were minimal, the record indicating that SYL only spent $2, 400 a year for services provided by Gunnip and Company, which included $1, 200 a year for the "salary" of Jones, SYL's sole employee. Id. at 87. No expenses were for the protection of any trademarks, and SYL's license agreement with Syms provided Syms with full control over the trademarks and the protection of the marks. Id. at 87-88.

         As to Crown Delaware, the undisputed record revealed that Crown Parent held the exclusive license to Crown Delaware's intellectual property. Id. at 94. Crown Delaware and Crown Parent's circular flow of money was evidenced by Crown Parent paying Crown Delaware royalties and Crown Delaware loaning money back to Crown Parent, sometimes on the same day. Id. at 96. The day to day operations of Crown Delaware were handled by Organization Services, Inc. ("OSI"). Id. at 94-95. For $100 a month, OSI provided office space, a mailing address, and nine part-time employees who were paid a total of $843.66 in wages for 1993. Id. at 95-96. In short, Crown Delaware's revenues "averaged around thirty-seven million dollars annually" but only spent on average just over two thousand dollars annually in expenses - none of which were for legal fees. Id. at 97. The record was devoid of any indication that Crown Delaware performed any function to promote or preserve the intellectual property it had acquired from Crown Parent. Id. at 97-98.

         The Court of Appeals concluded that "SYL and Crown Delaware had no real economic substance as separate business entities." Id. at 106. Accordingly, the Court held "that a portion of SYL's and Crown Delaware's income, based upon their parent corporations' Maryland business, is subject to Maryland income tax." Id. at 109.

         B. Gore

         Gore is the most recent case involving the taxation of a foreign intellectual property holding company that is a wholly owned subsidiary of a corporation doing business in Maryland. 437 Md. 492. In Gore, W.L. Gore & Associates, Inc. ("Gore") was a manufacturing company of "fabrics, medical devices, electronics, and industrial products" that operated factories in several states, including Maryland. Id. at 499-500. In 1983, Gore incorporated Gore Enterprise Holdings, Inc. ("GEH") in Delaware to manage its patents. Id. at 500. Gore assigned to GEH all of its patents and certain other assets in exchange for GEH's entire stock. Id. GEH then licensed the patents back to Gore for a royalty fee on all products sold by Gore. Id. GEH also entered into a licensing agreement with Gore that allowed Gore's attorneys to control the legal defense to patent infringement, licensing activities, and patent applications. Id. In addition, GEH did not have any employees until 1995, when it hired one employee to manage the patent portfolio. Id. at 500-01.

         In 1996, Gore incorporated Future Value, Inc. ("FVI")

in Delaware to manage Gore's excess capital. A Gore-employed attorney incorporated it, and two members of the Gore Board, along with GEH's Vice President, comprised the FVI Board. Upon FVI's formation, GEH transferred all of its investment securities to FVI, in exchange for all of the shares of FVI. GEH then declared a dividend to its sole shareholder, Gore, in the form of the FVI stock. This made Gore the sole owner of FVI. FVI was founded primarily to perform investment management functions, but has also extended Gore a line of credit when Gore experienced negative cash flow. As of 2008, FVI had three employees that handled, monitored, and recorded the various activities performed by FVI.

Id. at 501 (footnote omitted).

         In 2006, the Comptroller assessed back income taxes, interest, and penalties in the amount of $26, 436, 315 against GEH for the years 1983 through 2003. Id. Concurrently, the Comptroller assessed FVI $2, 608, 895 in back income taxes, interest, and penalties for the years 1996 through 2003. Id. The Tax Court upheld the Comptroller's tax assessment, ruling that GEH and FVI lacked economic substance separate from Gore, but the circuit court reversed. Id. at 501-02. The Comptroller appealed to this Court, and we upheld the Tax Court's ruling that GEH and FVI were subject to Maryland tax. Id. at 502. GEH and FVI petitioned the Court of Appeals for a writ of certiorari, which was granted. Id.

         The Court of Appeals began its analysis by agreeing with the Tax Court that the threshold issue on appeal was whether GEH and FVI lacked economic substance as business entities separate from Gore. The Court observed that the Tax Court marshaled numerous factual findings, supported by substantial record evidence. These included the following:

•There were no outside Directors of GEH or FVI and prior to 1996 the W.L. Gore family dominated the Officer list.

• FVI was simply an intentional depository for assets built up through royalties paid to the patent company, GEH.

•In effect, GEH does not create, invent or make anything and must rely on W.L. Gore employees to invent the new process or product. Thus, an idea generated by a technologist with W.L. Gore is prepared by GEH through an application for filing with the patent office. In most cases, the employees of W.L. Gore review the patent application and determine whether it should be pursued.

•The testimony in the case suggests that GEH relied on W.L. Gore for a continuing stream of inventions and discoveries as set forth in the materials that make up the patent application.

•The manufacture or sale of the product by W.L. Gore obligates the payment of royalties to GEH under the License Agreement.

• GEH as licensor to W.L. Gore, Inc., licensee, is dependent on the licensee's activities to obtain consideration for grants of the license. Although GEH has separate corporate status, the interdependence reflected in the third party License Agreements suggests that the patent committee of GEH strongly considers the interest of W.L. Gore in making its decisions.

• One witness for GEH who described herself as a Patent Administrator confirmed that W.L. Gore employees would prepare patent applications at no cost to GEH and that payments were made for GEH in accordance with the Service Agreement with W.L. Gore.
• [An economist for Petitioners] agreed that W.L. Gore and GEH had globally integrated goals and that a synergy existed between W.L. Gore and GEH due to the relationship between patents and products.
• Testimony from [ ] Petitioners' witnesses consistently suggested that nearly all of the third-party licenses came about in order to produce benefits for W.L. Gore or for the "W.L. Gore family of companies."
• In 1996, W.L. Gore was experiencing some negative cash flow when W.L. Gore asked FVI for a line of credit to meet current operating needs which continued through 1999. The intercompany loans reflected the intercompany dependence of FVI.
• The audits reflected through the inter-corporate transactions and Service Agreement that the Delaware Holding Companies relied on W.L. Gore for revenues and services.

Id. at 516-17 (alterations in original) (footnote omitted).

         The Court then summarized the four primary factual conclusions that led the Tax Court to properly rule that GEH and FVI lacked economic substance as business entities separate from Gore:

[1] the subsidiaries' dependence on Gore for their income, [2] the circular flow of money between the subsidiaries and Gore, [3] the subsidiaries' reliance on Gore for core functions and services, and [4] the general absence of substantive activity from either subsidiary that was in any meaningful way separate from Gore.

Id. at 517.

          According to GEH and FVI, however, SYL was distinguishable, because GEH and FVI "engaged in more substantive activities than those in SYL." Id. at 519. Specifically, "GEH acquired patents from third parties, licensed patents to third parties, and paid substantial fees for outside legal counsel and other services." Id. The Court characterized these activities as "more 'window dressing' than the SYL subsidiaries," but concluded that "these additional trappings do not imbue GEH and FVI with substance as separate entities." Id. (Emphasis in original). The Court elaborated: "Indeed, Gore permeates the substantive activities of both GEH and FVI. Petitioners' employees and operations are so intertwined with Gore as to be almost inseparable, as the 'Legal Services Consulting Agreement,' and reliance on Gore-for everything from professional services, to things like office space-so indicate." Id. at 519-20.

         C. Synopsis of SYL and Gore

         As previously stated, under SYL and Gore a nexus or minimal contacts with the State of Maryland that satisfies the constitutional requirements for income taxation by Maryland can be established when a foreign wholly owned subsidiary lacks economic substance as a business entity separate and apart from its parent company that does business in Maryland. See Gore, 437 Md. at 517-18; SYL, 375 Md. at 106. Whether a subsidiary lacks economic substance as a separate business entity is to be determined on a case by case basis, by considering four general factors.[8] Gore, 437 Md. at 517.

          First, a court should consider how dependent a subsidiary is on its parent company for income. Id. at 519. Gore and SYL instruct that a court should consider the amount of income a subsidiary receives from its parent company or other companies owned by the parent company. Id. at 515, 517; SYL, 375 Md. at 84, 86, 94. A court also should consider how much income is generated from third parties and how that income may compare with other sources of the subsidiary's income. See Gore, 437 Md. at 517.

         Second, a court should consider whether there is a circular flow of money from the parent company to the subsidiary and then back to the parent. Id. at 515; SYL, 375 Md. at 84, 86, 96. SYL and Gore teach us that the flow of money back to the parent can be evidenced in several different ways, such as dividends and loans. See Gore, 437 Md. at 515. At its core, this inquiry is whether the parent is the one who controls the flow of money and ultimately receives back the money paid to the subsidiary, subject to any expenses incurred by the subsidiary.

         Third, a court should consider how much the subsidiary relies on the parent for its core functions and services. Included in the core functions utilized by the subsidiary are office space and equipment, personnel, and corporate services. Id.; SYL, 375 Md. at 86-88, 96. The corporate services provided by the parent can include cash management, marketing, purchasing, accounting, payroll, tax ...


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