specially concurring.
I write to point out that I concur in the majority’s opinion only because I agree that no disputed facts were presented to the district judge. I am, however, troubled by this conclusion because I believe the railroad and the Tax Commission read more into the Court’s decision in Burlington Northern, Inc. v. Tax Comm’n, 121 Idaho 808, 828 P.2d 837 (1992) (Burlington I) than is there. They apparently read that opinion to say that the only proper method for calculating the amount of the investment tax credit is found in I.C. § 3027(i-o), to the exclusion of (s). The question of the proper method of calculating the credit was not an issue before the Court in Burlington I. The only issue in that case was the appropriate way to determine situs allocation for the property on which the credit could be calculated.
As is evident from the record in this appeal, counsel for Burlington Northern was aware the Tax Commission was asserting that the three-factor test, rather than the moveable property method, was’ the only permissible way to calculate the tax credit. I agree that the railroad should have at that point presented some proof to the court to establish that the three-factor test did not “fairly represent the extent of the taxpayer’s business activity in this state.” Because no such proof was presented to the district court, I agree with the majority that there were no genuine issues of material fact; thus the district court was correct in entering a summary judgment against the railroad.
Justice Bistiine participated fully in the decision of this case prior to his retirement on December 1, 1994.