(dissenting).
I respectfully dissent. I would reverse the administrative hearing officer’s decision that upheld the State Taxation and Revenue Department’s denial of Taxpayer’s refund claims for the 1988,1989, and 1990 tax years and affirmed the imposition of additional taxes and penalties against Taxpayer for the 1991 tax year.
The Department concedes that New Mexico’s corporate income tax statute, as it applies to the separate entity method of reporting, is similar to Iowa’s corporate income tax scheme that was declared invalid by the United States Supreme Court in Kraft General Foods, Inc. v. Iowa Department of Revenue & Finance, 505 U.S. 71, 112 S.Ct. 2365, 120 L.Ed.2d 59 (1992). Kraft held that Iowa’s tax reporting and payment provisions, as applied to corporations engaged in domestic and foreign commerce, facially discriminated against foreign commerce because they treated dividends received from foreign subsidiaries less favorably than those received from domestic subsidiaries and such disparate tax treatment is inconsistent with the Foreign Commerce Clause of the United States Constitution. Id.
The separate entity method of reporting under our Corporate Income and Franchise Tax Act also results in the same disparate tax treatment of foreign subsidiary dividends condemned in Kraft. Unlike the federal corporate income tax law, New Mexico’s corporate taxing scheme, like Iowa’s, does not authorize a credit or deduction for foreign taxes paid to foreign countries on the earnings of a corporation’s foreign subsidiaries. Similarly, New Mexico and Iowa both allow a deduction for dividends received from domestic subsidiaries but not those derived from a taxpayer’s foreign subsidiaries. As a result, both schemes include foreign, but not domestic, subsidiary dividend income in the tax bases used to determine the amount of a corporation’s state income taxation.
Although acknowledging the similarity of New Mexico’s corporate income tax to that of Iowa’s, the Department points out that following the decision in Kraft, New Mexico modified its tax scheme by adopting Administrative Regulation UDI 19:10 (issued March 4, 1994, effective retroactively to tax years beginning on or after January 1, 1988),1 allowing unitary corporations like Taxpayer, who use the separate entity method of reporting for New Mexico corporate income taxes, to adjust the Uniform Division of Income for Tax Purposes Act (UDITPA) three-factor apportionment formula by applying a modified version of the “Detroit formula of factor relief.” See NMSA 1978, §§ 7-A-l to -21 (Repl.Pamp.1993). Consequently, the Department asserts that New Mexico’s tax scheme, when viewed as a whole, removes its corporate income tax scheme from the constitutional problems identified in Kraft.
In my opinion, the Department’s effort to divorce itself from the holding in Kraft fails. My disagreement with the analysis and decision of the majority turns on its application of the four-part test articulated in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326 (1977), and the two additional inquiries imposed by Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 451, 99 S.Ct. 1813, 1823, 60 L.Ed.2d 336 (1979), when the tax involves foreign commerce.2 In order to surmount a challenge to the constitutionality of a state tax under the Commerce Clause of the United States Constitution, the Department must show that the tax (1) has been applied based upon an activity of taxpayer having a substantial nexus within the taxing state, (2) has been fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services provided by the state. Complete Auto Transit, 430 U.S. at 279, 97 S.Ct. at 1079. Since the tax here involves foreign commerce, Japan Line, Ltd. also requires a showing that, notwithstanding the fact that the tax satisfies the other criteria, it does not create a substantial risk of international multiple taxation, and that the state tax will not prevent “the Federal Government from ‘speaking with one voice when regulating commercial relations with foreign governments.’” Japan Line, Ltd., 441 U.S. at 451, 99 S.Ct. at 1823.
The Department contends that the use of the Detroit formula modifies the UDITPA formula so as ,to more accurately apportion the amount of this state’s income that a parent corporation is found to have incurred because the Detroit factor adjusts the UDITPA formula by adding to the denominator of the UDITPA formula the amount of property, payroll, and sales of any dividend income-generating foreign corporate subsidiary. However, modification of an apportionment formula to reduce the tax on Taxpayer’s foreign subsidiaries does not eliminate the disparate treatment of Taxpayer proscribed by Kraft.
The regulation relied upon by the Department which authorizes the use of the Detroit formula of factor relief does not remedy the main challenge of Taxpayer in the instant case. This Court, in NCR Corp. v. Taxation & Revenue Department, 115 N.M. 612, 618, 856 P.2d 982, 988 (Ct.App.), cert. denied, 115 N.M. 677, 857 P.2d 788 (1993), and cert. denied, 512 U.S. 1245, 114 S.Ct. 2763, 129 L.Ed.2d 877 (1994), upheld the right of' the state to impose a fairly apportioned corporate income tax upon NCR (a unitary corporation) having income derived both within and outside the state, including its foreign subsidiaries. This Court in NCR, however, did not address, the issue presented here, namely, whether the state’s unequal treatment of foreign subsidiary dividend as compared to domestic subsidiary dividend income violates the Foreign Commerce Clause of the United States Constitution.
Because the tax involved here permits corporations with domestic subsidiaries to exclude from the tax base the dividend income of those subsidiaries, but requires Taxpayer, who receives dividend income from foreign subsidiaries, to include such income in its tax base, without allowing a credit or a deduction, the tax does not accord equal treatment and thus is facially discriminatory. The Department has not shown that Taxpayer here is accorded equal treatment with corporations engaged in interstate commerce and which have no foreign subsidiary dividend income.3 Nor has the Department shown any compelling state interest which justifies disparate tax treatment of corporate foreign and domestic dividend income.
Regulation UDI 19:10 does not cure the facial discrimination recognized in Kraft, because it fails to eliminate the unequal treatment of foreign and domestic subsidiary dividend income from Taxpayer’s tax base. When foreign subsidiary dividend income is included in a corporation’s tax base, the Detroit formula serves to increase the denominator of the UDITPA apportionment formula by the amount of the foreign subsidiary property, payroll, and sales without also increasing the numerator. This results in a diminution of the apportionment formula and presumably lessens the taxpayer’s tax liability. However, the Detroit formula does not remove the foreign subsidiary dividend income from Taxpayer’s tax base. Thus, Taxpayer’s total foreign subsidiary dividend income remains subject to taxation under the Department’s regulation. Consequently, Regulation UDI 19:10, which employs the Detroit formula, falls well short of the “ ‘strict rule of equality’ ” required in interstate commerce clause cases. See Associated Indus. of Mo. v. Lohman, 511 U.S. 641, 649, 114 S.Ct. 1815, 1821, 128 L.Ed.2d 639 (1994) (quoting Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 73, 83 S.Ct. 1201, 1205-06, 10 L.Ed.2d 202 (1963)); see also Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 101, 113 S.Ct. 2510, 2520, 125 L.Ed.2d 74 (1993) (remedies employed by state must totally eliminate discrimination).
Furthermore, although the Department argues that application of the Detroit formula of factor relief provides a fair method of apportionment, this argument addresses only a portion of the six-part test to be applied. Fairness in applying the method of apportionment relates to the second factor in the Complete Auto Transit test — it does not satisfy the other components of the test. See Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995) (refusing to address a fair apportionment argument in determining whether a state-imposed tax violates interstate Commerce Clause); Westinghouse Elec. Corp. v. Tully, 466 U.S. 388, 399, 104 S.Ct. 1856, 1863, 80 L.Ed.2d 388 (1984) (“‘Fairly apportioned’ and ‘nondiscriminatory’ are not synonymous terms.” (emphasis added)).
Since, as pointed out by Taxpayer here, New Mexico continues to require that Taxpayer’s foreign dividend income derived from its foreign subsidiaries be included in its tax base and this requirement does not apply to corporations with domestic subsidiaries, a disparity exists, treating corporations who receive dividend income from foreign subsidiaries less favorably. It is this difference, I believe, that fails to remove Taxpayer’s Commerce Clause challenge in the present case from the constitutional impediments recognized in Kraft. Specifically, the tax in question here, as applied to Taxpayer, does not satisfy the third component of the Complete Auto Transit test, or the requirement in Japan Line, Inc., that such tax will not create a substantial risk of multiple, international taxation.
The Department also contends, and the administrative hearing officer below agreed, that under United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), Taxpayer failed in its burden to establish that under no set of circumstances would application of this state’s taxing scheme be valid. I believe the Department and the administrative hearing officer erroneously transferred the burden to Taxpayer to show that the Detroit formula of factor relief discriminates against foreign commerce. Taxpayer offered evidence that while application of the Detroit formula reduces, in part, the tax on its foreign subsidiary dividends, nevertheless, this formula does not eliminate this state’s unequal tax treatment of such income.4 This evidence was sufficient to rebut the presumption of the correctness of the tax, hence, the burden shifted to the Department to establish that this state’s corporate income tax scheme satisfies each factor of the four-part test of Complete Auto Transit and the two additional factors set out in Japan Line, Ltd.
Simply stated, Taxpayer’s challenge here is that the tax base used by New Mexico to compute corporate income taxes under the separate entity accounting method impermissibly violates the Foreign Commerce Clause of the United States Constitution by requiring foreign subsidiary dividend income to be included in Taxpayer’s taxable income, while excluding domestic subsidiary dividend income. This challenge is supported by persuasive authority. See Kraft, 505 U.S. at 78-82, 112 S.Ct. at 2370-71 (inclusion of dividend income of foreign subsidiaries of domestic corporation that is not required of domestic subsidiaries, facially discriminates between domestic and foreign subsidiaries); see also Woosley v. California, 3 Cal.4th 758, 13 Cal.Rptr.2d 30, 35-36, 838 P.2d 758, 771 (1992) (en banc) (tax imposed at uniform rate on intrastate and interstate commerce may still be facially discriminatory if state law defines the tax base differently for interstate as opposed to intrastate transactions), cert. denied, 508 U.S. 940, 113 S.Ct. 2416, 124 L.Ed.2d 639 (1993).
In McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 40-41, 110 S.Ct. 2238, 2252-53, 110 L.Ed.2d 17 (1990), the Court suggested that, in order to avoid discriminatory tax treatments, a state may either exclude dividend income derived from a corporation’s foreign subsidiaries from taxation or tax such income in the same manner as the Department taxes corporate taxpayers deriving income from domestic subsidiaries within the United States. The Detroit formula of factor relief relied upon by the Department does not follow either approach.
In sum, because the regulation promulgated by the Department includes in the tax base a portion of Taxpayer’s income not imposed upon corporations having income from domestic subsidiaries and imposes a tax upon a portion of its foreign subsidiary income, application of the Detroit formula does not meet the requirements of the Commerce Clause and the tax as applied to Taxpayer for the years in question facially discriminates against foreign commerce. I would grant the refunds sought by Taxpayer and invalidate the penalty assessments levied by the Department.
. In pertinent part, Regulation UDI 19:I0(A) provides:
Any corporation that receives foreign-source dividends during the taxpayer’s taxable year and that reports its corporate income tax liability to the state as a separate corporate entity and not as a member of a corporate group ... may adjust the denominators of its apportionment factors for foreign source dividends received. The taxpayer may increase the denominator of each of its apportionment factors by an amount equal to the respective denominator of the payor stated in United States dollars times a ratio of foreign-source dividends paid to the taxpayer divided by the book income of the payor.
. Taxpayer owns either all of the stock or varying percentages of stock in over 100 corporate subsidiaries that are incorporated and operate in foreign countries. Taxpayer receives dividends from these subsidiaries paid from the subsidiary corporations’ after-tax earnings.
. In this appeal, the administrative hearing officer found that Taxpayer’s foreign subsidiaries operate in foreign countries and the flow of value between Taxpayer and its foreign subsidiaries, including the dividends and deemed dividends received from its foreign subsidiaries, constitute foreign commerce.
. As recognized in Kraft, legitimate business reasons often lead a corporation to conduct foreign business through incorporation of foreign subsidiaries. Kraft, 505 U.S. at 76 n. 15, 112 S.Ct. at 2369 n. 15. Yet, as acknowledged by'the Department, whether a taxpayer that excludes foreign dividends from the tax base would pay less tax or more tax than a taxpayer using Regulation UDI 19:10 depends on the economic efficiency of the foreign operations. Thus, if the economic efficiency of Taxpayer's foreign operations exceeds that of its domestic operations, Taxpayer’s New Mexico income tax is increased.