(dissenting) — I dissent on the retroactivity issue. The line of federal cases announcing the new rule of law on retroactivity does not apply to reopen Tyler Pipe Indus., Inc. v. Department of Revenue, 483 U.S. 232, 107 S. Ct. 2810, 97 L. Ed. 2d 199 (1987), for two reasons. First, a new rule of federal law does not apply to cases that are already closed when the rule is announced. Second, the nature of the remand from the Supreme Court in Tyler Pipe does not give rise to application of the new rule of automatic retroactivity announced in James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S. Ct. 2439, 115 L. Ed. 2d 481 (1991).
The majority opinion effectively reopens a case which was final and closed almost a decade ago. The issue of the *206retroactivity of the Tyler Pipe decision was decided by this court in National Can Corp. v. Department of Revenue, 109 Wn.2d 878, 749 P.2d 1286, cert. denied, 486 U.S. 1040 (1988), under the then existing law. The parties to that case sought review in the United States Supreme Court and that review was denied. The law is settled on the issue; the decision of Tyler Pipe is given prospective only application. If the United States Supreme Court were deciding the Tyler Pipe case today, it probably would apply its new rule of commerce clause law to the litigants before it and thereby mandate retroactive effect be given its decision. If this court were deciding National Can today and if the Supreme Court had applied the new rule to the litigants, we would give the new rule of law retroactive effect. However, those cases are not being decided today; they were final eight years ago. Tyler Pipe and the remand to this court, National Can, were decided in 1987 and 1988, respectively, and the law in effect at that time was applied by the Supreme Court and by this court and that case is closed. The majority opinion reopens that case, which is in direct conflict with law announced by the Supreme Court.
The new rule on retroactivity announced in Beam Distilling in 1991 does not apply to the present case because the present litigants are asking us to reach back in time and apply a new rule of federal law to a case which was decided before the new rule of law was announced. The Supreme Court has clearly explained that new legal principles, even when applied retroactively, do not apply to cases already closed. Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 115 S. Ct. 1745, 1751, 131 L. Ed. 2d 820 (1995).84 The Tyler Pipe case has been closed since 1988 when the Supreme Court denied review of our decision in National Can. Therefore, the new federal rule on retroactivity announced in 1991 in Beam Distilling does not apply to the National Can decision.
*207It is illogical that the Supreme Court would remand to this court to allow us to decide how to apply its holding, deny certiorari on our decision applying the decision prospectively, and now mandate the case be applied in a contrary fashion to parties not even before the court in that controversy. I think the majority misreads the decision in Tyler Pipe when it finds the Supreme Court in that case did not leave open the issue of retroactivity, and it ignores the rule that new legal principles do not apply to cases already closed.
A history of the cases and facts involved shows that the Supreme Court did allow this court to make the retroactivity decision after its holding in Tyler Pipe, and that its newer rules of retroactivity do not apply under the facts of this case.
In 1987, the United States Supreme Court declared unconstitutional a part of Washington state’s B & O tax law and remanded to this court to decide if the decision should be applied retroactively or prospectively. The Supreme Court cited us to Chevron Oil,85 indicating that it contained the "factors to consider in deciding whether to impose [the] decision prospectively only.”86 Tyler Pipe, 483 U.S. at 251-53. We applied the Chevron Oil factors and held that *208the decision invalidating the state tax should be applied prospectively only. The Supreme Court denied review of that decision. National Can Corp. v. Department of Revenue, 109 Wn.2d 878, 749 P.2d 1286, appeal dismissed and cert. denied, 486 U.S. 1040 (1988). As a result, the litigant taxpayers in the Tyler Pipe case did not receive the benefit of the new rule with regard to taxes paid before the date of the Tyler Pipe decision. National Can, 109 Wn.2d at 895. In other words, the case was not given retroactive effect as to the litigant taxpayers or any other similarly situated taxpayers.
In Beam Distilling, the Supreme Court announced a new rule of law and retreated from its former Chevron Oil rule, holding that it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so. It is important to recognize that the Beam Distilling Court held only that when it applied a new rule to the parties then before the Court, that rule should then be applied to all others not barred by res judicata or procedural requirements. Beam Distilling, 501 U.S. at 544.87 Similarly, in Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 2513, 125 L. Ed. 2d 74 (1993), the Court reiterated that the "Court’s application of a rule of federal law to the parties before [it] requires every court to give retroactive effect to that decision.” The Court held that a rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law. *209Harper, 113 S. Ct. at 2517; see also Reynoldsville Casket, 115 S. Ct. at 1748.
The point is that in Tyler Pipe (the case announcing the new rule at issue here) the Supreme Court did not apply the rule to the litigants before it. It left open the issue of retroactivity for this court to decide. It did not, as the majority suggests, simply remand for a remedy; it also remanded for the determination of retroactivity. We decided that question under the then applicable law. The Supreme Court declined review and the case was closed. Nothing in Beam Distilling or Harper changes our decision. In the Beam Distilling and Harper decisions, the Court concluded that when it did not reserve the question whether its holding should be applied to the parties before it, the normal rule of retroactive application will be followed. Beam Distilling, 501 U.S. at 539; Harper, 113 S. Ct. at 2518. However, in Tyler Pipe the issue was reserved. The Supreme Court did not apply the rule to the parties before it; rather, it remanded to this court for the determination of retroactivity. It did not therefore mandate retroactive effect be given to that decision which decided a new rule of constitutional law. See National Can, 109 Wn.2d at 882-88.
The majority opinion results in a strange and unfair result. The parties that bore the cost and burden of litigating the constitutionality of the tax in the Tyler Pipe case did not receive tax refunds because the new rule (invalidating the tax) was only applied prospectively. However, the majority would now give retroactive application of this very same decision to taxpayers who were not involved in that litigation. This results in the very unfairness that the Supreme Court decried in Beam Distilling;88 that is, that the new rule applied to the litigants but not to others *210similarly situated. Here the majority decision results in an even greater injustice because those that successfully litigated the issue in Tyler Pipe were denied the retroactive application of the new rule to past events while those unrelated to the case now receive retroactive application of the new rule to taxes they paid before the date the tax was declared unconstitutional. In Beam Distilling, the Court explained that principles of equality and stare decisis dictate that "similarly situated ‘litigants should be treated the same,” and therefore a new rule cannot be applied retroactively to some litigants when it is not applied retroactively to others. Beam Distilling, 501 U.S. at 540, 542-43 (Souter, J.).
I would hold that the Tyler Pipe decision has always had, and still does have, only prospective application. Because the Supreme Court did not apply the new rule of law to the litigants before it in that case, no law requires it be given retroactive effect as to others who were not before the Court. Additionally, I would apply the federal law which holds that new rules of federal law do not apply to cases which are otherwise final. Any other rule could play havoc with cases wherein new rules of law were applied only to cases not yet final.
I would affirm the trial court.
Madsen and Talmadge, JJ., and Pekelis, J. Pro Tern., concur with Guy, J.
Motions for Reconsideration denied November 8, 1996.
See also Beam Distilling, 501 U.S. at 541 (retroactivity in civil cases must be limited by the need for finality and a new rule "cannot reopen the door already closed.”)
Chevron Oil v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971).
The Supreme Court in Tyler Pipe stated as follows:
The [Washington] Department of Revenue argues that any adverse decision in these cases should not be applied retroactively because the taxes at issue were assessed prior to our opinion in Armco and the holding in that case was not clearly foreshadowed by earlier opinions. See Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971) (factors to consider in deciding whether to impose decision prospectively only). The State’s argument is similar to an argument advanced by the State of Hawaii in Bacchus Imports, Ltd. v. Dias, 468 U. S., at 276-277. The State urged that, if we invalidated the tax at issue, we should not require the payment of refunds to taxpayers. We did not resolve the merits of that issue, concluding that this Court should not take it upon itself in this complex area of state tax structures to determine how to apply its holding.]
Tyler Pipe, 483 U.S. at 251-52 (emphasis added).
The Court concluded that "it is likewise appropriate for the Supreme Court of Washington to address in the first instance the refund issues raised by our rulings in these cases.” Tyler Pipe, 483 U.S. at 253.
*208We understood that on remand this court was to decide the issue of retroactivity. National Can, 109 Wn.2d at 881. We decided refunds were not available to the parties before the court for taxes collected before the date of the Supreme Court’s decision because the case should be given pure prospective application. National Can, 109 Wn.2d at 895.
The Supreme Court stated:
The grounds for our decision today are narrow. They are confined entirely to an issue of choice of law: when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata. We do not speculate as to the bounds or propriety of pure prospectivity.
Beam Distilling, 501 U.S. at 544 (Souter, J.).
We understood this issue in Robinson v. City of Seattle, 119 Wn.2d 34, 77, 830 P.2d 318 (1992). We explained that
under Beam Distilling, retroactive application of a principle in a case announcing a new rule precludes prospective application of the rule in any subsequently raised suit based upon the new rule. Such selective, or "modi*210fled”, prospectivity would be unequal and unmindful of stare decisis as it treats similarly situated litigants unequally.