dissenting.
I concur with the holding that, under prior decisions of this Court,1 the proceeds from *200the liquidation of the partnership interest owned by Associated Partnership, Inc. are “non-business earnings” within the meaning of the statute applicable at the time of the liquidation.
However, I would hold that the commercial domicile of the taxpayer was Tennessee and, therefore, pursuant to T.C.A. § 67-4-810, the earnings realized on the liquidation are subject to allocation to Tennessee.
The majority is guided by form rather than principle, and, as stated in Wheeling Steel Corp. v. Fox, 298 U.S. 193, 56 S.Ct. 773, 80 L.Ed. 1143 (1936), “make[s] a legal fiction dominate realities.” The effect of the decision is that taxpayers can, by the clever use of organizational structure, stay at least one step ahead of the state’s taxing authority and avoid the payment of taxes. In this case, a net gain of more than $122 million goes untaxed by Tennessee, or any other state, because the owner of the partnership interest sold was careful to remain outside the state of Tennessee while engaged in any activity that affected its investment. The business activity, which generated these profits realized by the absentee owner upon liquidation, utilized all the direct and indirect services provided by state and local governments, including police and fire protection, schools, health services, streets and roads, and the courts. The legislature intended that Tennessee collect the modest tax imposed on these gains and a proper interpretation of its enactments would accomplish that purpose.
In Tennessee, “non-business earnings” are allocated pursuant to the provisions of Tennessee Code Annotated Section 67-4-810 (1989). An interest in a partnership is intangible personal property. Omnicon, Inc. v. King, 688 S.W.2d 818 (Tenn.1985). “Capital gains and losses from sales of intangible personal property are allocable to this state if the taxpayer’s commercial domicile is in this state.” T.C.A. § 67-4-810(e)(3) (1989).
“Commercial domicile” is defined as “the principal place from which the trade or business of the taxpayer is directed or managed.” T.C.A. § 67-4-804(a)(2) (1989 & Supp. 1993). Commercial domicile is a legal concept developed to enable the state which gives the greatest protection and benefits to a corporation, rather than the state of “legal” domicile or incorporation, or even the state in which legal control of the corporation is exercised, to recover a tax for the privilege of doing business. The term, “commercial domicile,” originated in the United States Supreme Court decision Wheeling Steel Corp. v. Fox, 298 U.S. 193, 56 S.Ct. 773, 80 L.Ed. 1143 (1936), in which the Court held that refusal to allow taxation of a foreign corporation by a state in which the business has its commercial domicile would be “to make a legal fiction dominate realities.” Id. at 211, 56 S.Ct. at 777. Wheeling Steel Corp. and other cases construing “commercial domicile,” though few in number, establish definite legal principles that, when applied to the corporate taxpayer and the intangibles being taxed, determine commercial domicile for taxation purposes. Those principles applied to the facts in this case establish that Associated Partnership II’s commercial domicile was in Tennessee.
The business of all the affiliated legal entities in this case, 13-30 Group and 13-30 Corporation prior to the restructuring, and Associated Partnership I, Inc., Associated Partnership II, Inc., Whittle Communications Limited Partnership and Whittle Communications, Inc. after the restructuring, was publishing. The person primarily responsible for the management of the publishing business and the generation of all profits was Christopher Whittle. The publishing business was operated from its headquarters in Knoxville, Tennessee, with Whittle in control. Neither the operation nor substantive control of the business left Knoxville after the restructuring.
Prior to the reorganization in 1986, less than two years prior to the sale that generated the net gain to Associated Partnership II, Inc. of $122,400,783, the structure of the Whittle business was a holding company, 13-*20130 Group, and a wholly owned subsidiary, 13-30 Corporation, which was the operating company. At that time, Daily Mail had purchased 80.9 percent of 13-30 Group, and, of course, effectively owned the same percent of the operating company.
In 1986, the business was restructured to provide a means of rewarding Whittle and his associates, who were responsible for the successful operation of the business. The result was a limited partnership, Whittle Communications Limited Partnership, composed of two general partners — Whittle Communications, Inc. and Associated Partnership II, Inc. Whittle Communications, Inc. was a Tennessee Corporation, wholly owned by Whittle and it was solely responsible for the operation of the publishing business. Associated Partnership II, Inc. was owned by a subsidiary of Daily Mail. The limited partners of Whittle Communications Limited Partnership were management employees of Whittle Communications, Inc. As of June 1, 1986, based on capital contributions made as a part of the restructuring, Associated Partnership II, Inc. owned 99 percent of Whittle Communications Limited Partnership, and Whittle Communications, Inc. and the limited partners owned one percent.
The partnership agreement provided that Associated Partnership II, Inc. was entitled to a “preferential rate of return” on its capital contribution of $141 million. After paying to Associated Partnership II, Inc. (i.e. Daily Mail), a preferential rate of return, Whittle Communications Limited Partnership made pro rata distributions to the limited partners’ capital accounts. The result was that the greater the profit generated by Whittle Communications, Inc., the operating company, the more valuable became the interests of Whittle and his management associates in the limited partnership. When a one-half interest in Whittle Communications Limited Partnership was sold by all partners, general and limited, 18 months after the restructuring, Associated Partnership, II, Inc.’s interest had been reduced to 66 percent, Whittle Communications, Inc.’s interest had increased to 32 percent, and the limited partners’ interests had increased to 12 percent.
The decision to sell, made by Whittle, was agreed to by Daily Mail only because the profits were being generated by Whittle and without him their investment in Whittle Communications Limited Partnership would be seriously impaired. The record shows the decision to make the sale that produced the gain was made by Whittle, followed, of course, by the adoption of appropriate corporate resolutions and the execution of other legal documents. That process demonstrates dramatically that the ultimate management and control of the entire business operation was in Whittle.
Daily Mail’s interest in Whittle’s publishing business was essentially an investment. The only activity of Associated Partnership II, Inc. was to hold Daily Mail’s interest in Whittle Communications Limited Partnership. Daily Mail’s right to a “preferential” position with regard to the allocation of profits was not unlike the position of a holder of preferred stock. The Daily Mail Group was composed of more than 150 affiliated entities of which Associated Partnership II, Inc. was only one. Although Associated Partnership II, Inc. was incorporated in Delaware, the only activity of Associated Partnership II, Inc. in Delaware was the ownership of a post office box. Associated Partnership II, Inc. owned no property interests in any other jurisdiction. The infrequent meetings concerning Associated Partnership II’s investment in Whittle Communications Limited Partnership were held in New York, Montreal, London, or by telephone. The accountants and lawyers were located primarily in New York, but they did not spend a significant amount of time on Associated Partnership II, Inc.’s activities.
In addition to exclusive management of the ordinary business activities of the partnership, Whittle Communications, Inc. had the power to employ and discharge employees, conduct product development, and buy and sell capital assets and incur debt, except for extraordinary transactions. Whittle Communications, Inc. was designated the “tax matters partner” under Section 6231 of the Internal Revenue Code, and kept all the books and records for Whittle Communications Limited Partnership. Whittle, as CEO of *202Whittle Communications Limited Partnership was required to seek the advice of Daily Mail only as to “very high level decisions.” In effect, Associated Partnership II, Inc. delegated to Whittle through Whittle Communications, Inc. the power to manage the business of Whittle Communications Limited Partnership. Whittle testified that he “had management control of the business to do as I see fit in the business.” Charles Sinclair, the chief executive of Daily Mail, testified that Whittle was “the chief executive” in charge of running the partnership’s day-today business operations which were carried on in Knoxville. The financial director of the Daily Mail, Saunders, testified that the time he spent on Associated Partnership I, Inc. and Associated Partnership, II, Inc. was “negligible.”
More than 75 percent of the corporate tax paid by Associated Partnership II, Inc. was paid to Tennessee for fiscal year 1988, which indicates that in addition to all management functions being performed in Tennessee, the great majority of the partnership’s actual business transactions occurred in Tennessee. Every penny of the approximately $144 million earned by Associated Partnership II, Inc. from its creation in 1986 to the end of 1988 was derived from its ownership interest in the Whittle Communications Limited Partnership, which was operated and managed in Tennessee.
No other jurisdiction has sought to tax Associated Partnership II, Inc.’s intangibles on the basis that it is the commercial domicile of Associated Partnership II, Inc. Nor does Associated Partnership II, Inc. point to another commercial domicile in which these intangibles could be taxed.
There are no Tennessee cases dealing with the definition of “commercial domicile”; however, the issue has been considered by courts in other jurisdictions. The majority’s interpretation of those decisions from other jurisdictions focuses on the legal structure of the taxpayer rather than upon the principles upon which the holdings are based. In Wheeling Steel Corp. v. Fox, West Virginia’s attempt to collect property taxes upon the accounts receivable and bank deposits of a Delaware Corporation was challenged on due process and equal protection grounds. In upholding imposition of the property taxes, the Court stated:
The corporation established in West Virginia what has aptly been termed a “commercial domicile.” It maintains its general business offices at Wheeling and there it keeps its books and accounting records. There its directors hold their meetings and its officers conduct the affairs of the corporation. There, as appellant’s counsel well says, “the management functioned.” The corporation has manufacturing plants and sales offices in other states. But what is done at those plants and offices is determined and controlled from the center of authority at Wheeling. The corporation has made that the actual seat of its corporate government.
298 U.S. at 211, 56 S.Ct. at 778. The United States Supreme Court found the commercial domicile of the corporation to be where “management functioned,” where “its officers conduct the affairs of the corporation.” The basic principle was thus settled in Wheeling Steel Corp. but, since Wheeling Steel Corp.’s business was conducted as a single corporation, the effect of having a complex legal structure for the purpose of conducting one integral business operation was not before that Court.
In Southern Pacific Co. v. McColgan, 68 Cal.App.2d 48, 156 P.2d 81 (1945), the Court extended the principle stated in Wheeling Steel Corp. and found that commercial domicile is not determined by the location of the holding company that exercises ultimate legal control of the operating corporation. In that case, in which the legal structure was similar to the case before the Court, the corporation was incorporated in Kentucky, its executive committee held meetings in New York, and it operated a railroad business in California and six other states. After reviewing the development of the law whereby a corporation’s “commercial domicile” determines the state in which it is subject to taxation, the court stated,
That the state where ultimate control is exercised is not necessarily the commercial domicile is implicit in the holding in Smith v. Ajax Pipe Line Co., 8 Cir., 87 F.2d 567 *203[(1937)], where the stock of the corporation involved was wholly owned, and therefore the corporation was ultimately controlled, by a holding company located outside the taxing state. When a corporation severs its ties with the state in which it is incorporated and engages in no corporate activities there, but engages in activities elsewhere, the contention that, as a matter of law the only state that can possibly be held to be its commercial domicile is that state where its board of directors meets, is as unrealistic, unsound, and artificial as the concept that the corporation for all tax purposes is domiciled in the state of incorporation. It was to free the law from this last mentioned artificial and fictional concept that the concepts of business situs and commercial domicile were applied by the courts. The true test must be to consider all the facts relating to the particular corporation, and all the facts relating to the intangibles in question, and to determine from those facts which state, among all the states involved, gives the greatest protection and benefits to the corporation, which state, among all the states involved, from a factual and realistic standpoint is the domicile of the corporation. That is partially a question of fact and partly a question of law.
Id. 156 P.2d at 99. The court found the commercial domicile to be California. Application of the holding in Southern Pacific Co. to the case before the Court would determine the commercial domicile of Associated Partnership II, Inc. to be in Tennessee.
In the Matter of Vinnell Corp., 1978 WL 3943 (Cal.St.Bd.Eq.), the issue was whether the taxpayer’s commercial domicile was in California. In holding that even though the board of directors met in California, that state was not the corporation’s commercial domicile, the court relied on the test set out in Southern Pacific Co. v. McColgan. The court stated,
It is true that, when required, the board of directors ultimately ratified the broad-ranged management decisions made in the field. But this passive acquiescence, after the fact, is not the active management and control required to establish a commercial domicile and the ultimate power to tax a foreign corporation’s intangible income.
Id. at 13.
In Pacific Western Oil Corp. v. Franchise Tax Board, 136 Cal.App.2d 794, 289 P.2d 287 (1955), cert. denied, 352 U.S. 805, 77 S.Ct. 35, 1 L.Ed.2d 38 (1956), the taxpayer corporation was incorporated in Delaware, meetings of the directors and stockholders were held in New Jersey, and the source of the intangible income was from dividends and sales of stock located outside of California. The taxpayer corporation was engaged in the petroleum business and also held securities in companies engaged in the same business. The trial court found that the corporations in which the taxpayer held stock were connected to the taxpayer’s own business and that the commercial domicile of each was in California where “the greater portion of their business affairs and activities were carried on and managed in, and protected by.” Id. 289 P.2d at 293. In reaching that conclusion, the court considered the location of employees, payroll and records; the salaries of the officers; the extent of business in California; the location of fixed assets; and the fact that no other state had imposed a tax on the income from intangibles, to determine that California was the commercial domicile.
... Here, the taxpayer contends that its activities in respect to its intangibles constituted a separate business from its petroleum business and that not Delaware, the state of its incorporation, but New Jersey, where it maintained offices and where its directors met and where its intangible assets were physically held, was its “commercial domicile” with respect to such activities ....
Appellants claim it conducted an investment business. In support of its claim that, during the taxing period involved, taxpayer was engaged in a separate business, distinct from its oil production business, consisting of the handling, the investing, and the managing of its intangible assets, taxpayer points to [the decision to expand by acquiring control of other corporations rather than putting their money into the actual oil operations].
*204Id. at 291. The court found that “The taxpayer permanently held stock in other corporations in the petroleum industry in order to advance its interests in the petroleum industry and did not acquire stock for the purpose of trading in shares.” Id. at 293. On appeal, the court affirmed the trial court’s findings.
Pelto Oil Co. v. Collector of Revenue, 384 So.2d 533 (La.Ct.App.1980), involved a business whose legal structure was very similar to that in the case before the Court. The taxpayer, Pelto Oil Co., did business as a division of Southdown, Inc. At the beginning of the assessment period, Southdown owned all the outstanding stock of Pelto. During the assessment period, Southdown’s interest in Pelto was reduced to 56 percent of the outstanding stock by value and 83 percent by voting power.
Under a statute that taxed income from securities according to a corporation’s commercial domicile, the court held that though four of the eight Pelto officers, including its chairman and chief executive officer, worked in Pelto’s office in Houston; stockholders’ meetings were held in Houston; two-thirds of the board of directors’ meetings were held in Houston; all of the significant management decisions were made at meetings in Houston; most of the oil wells and leases were located outside of Louisiana; legal counsel was located in Houston; and all decisions regarding possible corporate acquisitions by Pelto were made in Houston; the “commercial domicile” was in Louisiana:
It is the opinion of this court that Pelto “functioned” and its business was managed and carried out in New Orleans. Pelto’s principal business function is obtaining geological data and engaging in the production of oil and gas. This function was carried on in New Orleans and not in Houston.... Its books and records of day-to-day operations were kept in New Orleans.... A functioning management controlling employees which kept books, made plans, prepared budgets, made sales, contracted for services, collected money, paid bills, salaries, and other obligations, existed in New Orleans under a president who conducted day-to-day operations-
In language particularly applicable to the case before the Court, the Louisiana court held:
... [E]ven if the “high level management decisions” with Pelto were made by South-down through common officers of Pelto, the detailed implementation and exercise of the policies were left as a matter of business to Pelto in New Orleans.
Id. at 539-540.
In United Gas Corp. v. Fontenot, 241 La. 488, 129 So.2d 748, 756 (1961), the state of Louisiana assessed for taxation the net gain on the sale by United Gas Corp. of stock in an affiliated corporation, in which United Gas Corp. owned 46.65 percent of the outstanding stock. The Louisiana Supreme Court’s description of the taxpayer’s corporate structure in that ease is not inappropriate to the corporate structure under review in this ease:
[T]his case furnishes an excellent example of the manner in which the threads of holding companies, subholding companies, operating subsidiaries, affiliates, and interlocking officers and directorates served to draw about the management and corporate functions of each as a separate entity draperies meshed of such an impenetrable and tangled mass of intricate manipulations and devices as to require the courts to look into the “realities” of the facts of each case, resulting ... in the development of the “commercial domicile” exception to the mobilia rule as originally applied to the intangible assets of such legal entities....
United Gas Corp. v. Fontenot, 129 So.2d at 760. The court’s holding speaks directly to the case before the Court:
The concept underlying the “commercial domicile” exception is that it is the better view to ignore the mere semblance of a domicile of a corporation created by technical compliance with the legal requirements of the incorporating state, ... and to permit, for tax purposes, the substantial domicile of the corporation, based on the actual commercial practices of the particular corporation, to prevail, since that state is, obviously, furnishing the bulk of governmental protection to the corporation.
The significant legal principle established by United Gas Corp. is that in determining *205the state where the actual control of the business is exercised and the state from which the corporation receives the greatest protection and benefits, the courts must look to the substance of the business operation rather than the legal form or “paper structure.”
The majority relies upon Western Natural Gas Co. v. McDonald, 202 Kan. 98, 446 P.2d 781 (1968), and Anniston Sportswear Corp. v. Alabama, 275 Ala. 46, 151 So.2d 778 (1963). In McDonald, the issue was whether income from the sale of oil and gas leases was made in the regular course of business operations or was non-business income. The question of commercial domicile was not at issue in that case. In stating that, “The commercial domicile of Western was in Houston, Texas, therefore, the income from the sale of Western’s intangible personal property is not taxable in Kansas,” the court was merely recognizing the parties’ stipulation that “[Western’s] principal office from which the business was directed was in Houston, Texas.” Consequently, the finding that the commercial domicile was in Houston is not helpful in resolving the issue in this case.
In Anniston Sportswear Corp., the corporation was incorporated in Indiana, and owned one manufacturing plant in Anniston. The court found Indiana to be the commercial domicile. This case is distinguishable from the case at bar. Even though all of the actual manufacturing operations were conducted in Alabama,
... all of [Anniston Sportswear’s] activities, other than the strictly manufacturing operations in Anniston, are conducted from its office in Michigan City. All administrative and control functions are performed at Michigan City, including the formulation of administrative policies, the determination of productive capacity, the setting of prices, the acceptance of orders, the purchasing of all raw materials, the preparation of production orders and cutting tickets, and the determination of salaries. Also, payment of the payroll for all supervisory personnel working in Anniston, as well as appellant’s officers, is made from the Michigan City office.
151 So.2d at 780. All the activity described in the above quotation, which determined that Indiana was the commercial domicile, were performed in Tennessee in the case before the Court. Contrary to the majority’s interpretation, the Anniston Sportswear court’s reliance in reaching its holding on the extent of management control of the day-today operations of the manufacturing plant supports the proposition that it is where the business of the manufacturing plant is managed or directed, that establishes the commercial domicile.
The cases have established that the essential factors in determining the commercial domicile of a corporation are where the substantive, rather than the legal, management functions are performed and where the corporation receives the greatest benefits and protection from state government. The essential and substantive management function of the Whittle affiliated corporations and partnership was performed in Tennessee. In the language of Wheeling Steel Corporation, what was done outside Tennessee (New York, London, Canada) was “controlled from the center of authority” at Knoxville. All of the benefits and protections enjoyed by the operating business were provided by the state of Tennessee. No other state has imposed a tax on the gain from the sale and the taxpayer has not designated another state as its commercial domicile.
Tollett v. Franklin Equities, Inc., 586 S.W.2d 96 (Tenn.1979), and Omnicom, Inc. v. King, 688 S.W.2d 818 (Tenn.1985), mentioned in the majority opinion, are not in any way relevant to the issue of commercial domicile.
Taxation should not be determined by such superficial circumstances as where the corporate office is located, where the directors meet, and where the profits made by the Tennessee operating company are deposited and managed. Again, in the language of Wheeling Steel Corp., such makes a “legal fiction dominate realities.” 298 U.S. at 211, 56 S.Ct. at 777.
I would hold that Associated Partnership II, Inc.’s commercial domicile was in Tennessee and affirm the Chancellor’s decision finding the gain subject to taxation in Tennessee.
. See Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.1993); Federated Stores Realty, Inc. v. Huddleston, 852 S.W.2d 206 (Tenn.1992).