dissenting.
While I agree with that portion of the majority’s decision concluding that the apportionment formula used by the Department of Finance and Revenue (Department) to calculate Unisys Corporations’ (Unisys) franchise taxes complied with due process, I dissent from that portion of the majority’s opinion that the disparity between the calculations of Unisys’ allocated and actual shares was sufficient reason to require the Department to afford Unisys equitable relief under Section 401(3)2.(a)(18) of the Tax Reform Code of 19711 (referred to herein as Subsection 18). I disagree because I believe that Subsection 18 only requires equitable relief where the disparity is unconstitutional, not where the disparity is something less than unconstitutional, i.e., unfair. To hold otherwise would place us at variance with other states that have adopted an identical provision. Also, no court has found that a 45% disparity is anywhere near the range of disparity previously held to require equitable relief.
This case involves the Pennsylvania franchise tax that is imposed on the capital stock value of every out-of-state corporation doing business in Pennsylvania. In order to come up with the appropriate tax for that portion of a corporation’s business activity conducted only in Pennsylvania, there are two methods that may be used to apportion the value of its capital stock - the single-factor method and the three-factor method.2 Because the choice of method is left up to the taxpayer, Unisys utilized the three-factor apportionment formula (averaging fractions of property, payroll and sales) to determine the taxable portion of its foreign corporations’ corporate stock value for the tax years 1984-1994. In doing so, it included in its calculations the property, payroll and sales figures from its subsidiaries but only those figures from its parent corporation.
In settling Unisys’ franchise tax for the years in question, the Department increased the net worth and average net income reported by Unisys by including the net worth of its subsidiaries and adding the dividends of its subsidiaries which resulted in a higher franchise tax.3 Unisys appealed the Depart-*1106merit’s settlements, which were denied and this appeal followed. On appeal, the majority disagrees with Unisys’ contention that the Department’s exclusion of its subsidiaries’ property, payroll and sales figures in calculating the franchise tax violated the commerce clause and due process clause of the United States Constitution. The majority states that if the method used to apportion the total income between taxable in-state and non-taxable out-of-state components is fair, due process will be met. Further, because the purpose of the formula is to apportion the value of the entire business enterprise among different jurisdictions, the majority concludes, “it can hardly be subject to dispute that an apportionment formula which includes data from the entire enterprise will yield a more accurate result than a formula based solely upon the parent corporation’s operations.” (Maj. op. at p. 1101.) The majority then continues to explain that an apportionment formula complies with due process when, on its face, it is reasonably calculated to reach only the profits earned within the state and is not inherently arbitrary, and the income attributed to the State is not out of all appropriate proportions to the business transacted, i.e., not grossly distorted.
However, the majority goes on to determine that Subsection 18 applies even' if the disparity is constitutional, and that Unisys is entitled to equitable relief from the Department because of the magnitude of the 45% disparity.4 I disagree with the majority that a 45% variance is of such a magnitude that it requires equitable relief from the Department because that same figure cannot be found to be within the range of constitutionality and, therefore, a fair determination of the taxes owed and, at the same time, be “unfair” and of such a magnitude of disparity that it also requires equitable relief.
The plain language of Subsection 18 shows that it was meant to provide equitable relief only when the disparity was palpably so great that it would violate due process. Subsection 18 provides:
(18) If the allocation and apportionment provisions of this definition do not fairly represent the extent of the taxpayer’s business activity in this State, the taxpayer may petition the Secretary of Revenue or the Secretary of Revenue may require, in respect to all or any part of the taxpayer’s business activity:
(A) Separate accounting;
(B) The exclusion of one or more of the factors;
(C) The inclusion of one or more additional factors which will fairly represent the taxpayer’s business activity in this State; or
(D) The employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income.
72 P.S. § 7401(3)2.(a)(18) (Emphasis added.)
“Fairness” is a constitutional term.5 It means that either a taxpayer did not receive proper procedural protection or the statute did not treat it similarly to other taxpayers. Commonwealth v. Mercadante, 676 A.2d 1309 (Pa.Cmwlth.1996); Triumph Hosiery Mills, Inc. v. Commonwealth, 21 Pa.Cmwlth. 186, 343 A.2d 710 (1975), aff'd, 469 Pa. 92, 364 A.2d 919 (1976), appeal dismissed, 429 U.S. 1083, 97 S.Ct. 1090, 51 L.Ed.2d 530 (1977). Subsection 18 addresses the situation where the tax, as applied, leads to an unconstitutional result but that litigation can be avoided by allowing administrative officials to modify the tax as applied to bring it within constitutional norms. It does not mean that a taxpayer can claim administrative relief for unfairness that does not rise to the level of unconstitutionality; otherwise, such a claim *1107becomes similar to the plea that all parents hear from their children when they have to do something they do not want to do and they complain, “it’s not fair.”
The language in Subsection 18 was adopted from and is identical to Section 18 of The Uniform Division of Income for State Tax Purposes Act that was approved in 1957 by the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the American Bar Association. That Act deals with the allocation and apportionment of income of business in multiple jurisdictions and is designed for those states that have taxes measured by net income. Those states that have also adopted Section 18 and have provisions identical to Subsection 18 do not interpret “unfairness” to be anything less than unfair constitutionally. See, e.g., Mobil Oil Corp. v. Commissioner of Taxes of Vermont, 445 U.S. 425, 100 S.Ct. 1223, 63 L.Ed.2d 510 (1980); Capitol Industries-EMI, Inc. v. Bennett, 681 F.2d 1107 (9th Cir.1982); Atlantic Richfield Co. v. State, 705 P.2d 418 (Alaska 1985); Colgate-Palmolive Co. v. Franchise Tax Bd., 10 Cal.App. 4th 1768, 13 Cal.Rptr.2d 761 (Cal.Ct.App.1992); Miami Corporation v. The Department of Revenue, 212 Ill.App.3d 702, 156 Ill.Dec. 820, 571 N.E.2d 800 (Ill.App.Ct.1991); Liquid Transporters, Inc. v. Revenue Cabinet, Commonwealth of Kentucky, 721 S.W.2d 722 (Ky.Ct.App.1986); E.I. Du Pont de Nemours & Co. v. State Tax Assessor, 675 A.2d 82 (Me.1996); Lee v. Department of Revenue, - Or. Tax. -, 1998 WL 283143 (Or.T.C.1998). While many taxpayers believe that the taxes they pay are “unfair,” as long as they are constitutional and calculated in accordance with a statute, they must be paid. To allow a generalized claim of unfairness would lead to a standardless system where tax relief could be granted for non-salutorious reasons.
Not only do I disagree with the majority that Unisys’ increased franchise tax is unfair, I do not believe that the 45% disparity is “unfair” under any definition of that term. Unisys created the disparity in this ease by choosing to use the three-factor method instead of the single-factor method. Under the single-factor method, all of the property owned by Unisys, both tangible and intangible, would have been valued and used in place of the property, payroll and sales fractions in the three-factor method to calculate its taxes. Taxpayers that own the majority of the voting stock of another corporation, e.g., a subsidiary, are entitled to exclude or exempt the value of that corporation from the numerator of the single-factor fraction. See Act of April 20, 1927, P.L. 311, as amended, by the Act of June 22, 1931, P.L. 687, 72 P.S. § 1894. If Unisys had elected to use the single-factor method of apportionment, most of its subsidiaries would have been excluded from the calculation of the franchise tax and its tax would have been considerably lower. However, it chose not to use that method and cannot now complain that the higher tax based on the three-factor formula entitles it to equitable relief.
Finally, ignoring that Unisys chose its method of calculation, it has offered no reason as to how the tax, as applied to it, is “unfair” other than saying if the tax was calculated its way, it would be less and as a result, the tax as imposed is unfair. Unisys must provide something more than that to establish “unfairness” other than saying it is no matter what the standard is that someone comes up with to interpret Subsection 18. Moreover, the only time a court has found that a disparity required equitable relief was where the number was so egregious. See e.g., Hans Rees’ Sons v. North Carolina ex rel. Maxwell, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879 (1931) (court held there was a violation of due process where foreign corporation was assessed 80% of its income while less than 22% of its income was actually related to its operations in that state, resulting in a disparity of 250% in the amount of taxes assessed and the amount due). See also Norfolk & Western Raihvay v. Missouri State Tax Commission, 390 U.S. 317, 88 S.Ct. 995, 19 L.Ed.2d 1201 (1968) (court held that gross, disparity exceeded constitutional limits where foreign corporation was found to have 8% of its rolling stock located in Missouri, while in actuality there was only 3% located there, resulting in an approximate *1108166% disparity).6
In order for Subsection 18 to apply, there must be an unfair and unconstitutional allocation and apportionment of the foreign corporation’s income that does not fairly represént its actual business activity in the State. No ease has held that anywhere near a 45% disparity warrants equitable relief because the disparity is far less than in any case where equitable relief was granted. Accordingly, I would hold that Unisys’ 45% disparity was not unfair because it fairly represents its business activity in this State and affirm the Department’s decision.
. Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7401(3)2.(a)(18).
. See majority opinion at page 1099, note 4 and page 1099 for the formulas used in each of those methods.
.Pursuant to Subsection 18, the Department has the authority to adjust the taxpayer's accounting when it does not fairly represent the extent of the taxpayer s business in Pennsylvania. Additionally, we note that pursuant to Sections 401(3)2.(a)(10), (13), and (15) of the Tax Code, 72 P.S. §§ 7401 (3)2.(a)(10), (13), and (15), when *1106calculating the denominator of the property, payroll and sales factors, the taxpayer must include the property, payroll and sales of the taxpayer everywhere during the tax period.
. The majority apparently agrees with Unisys’ statement: "If the distortion is not cured by constitutional relief, it should be cured by statute." (Unisys' brief at p. 24.)
. I do not see how we can apply anything other than the constitutional standard because otherwise Subsection 18 would be void for vagueness. No one would dispute that a statute that provides "a fair tax will be imposed” would be struck down as unconstitutional. Similarly, if the majority view prevails, Subsection 18 should be struck down because what "fairly represents" is similarly vague and standardless.
. We note that the majority relies on Norfolk & Western Railway to show that a constitutional violation was found where the allocated and actual shares were 8% and 3% respectively, and because the discrepancy between the allocated and actual shares in this case of 45% was much greater, Unisys requires relief. However, the majority misapplies the calculations from Norfolk & Western Railway because the actual disparity in that case was approximately 166%. Compared to the 166% disparity in Norfolk & Western-Railway, the 45% disparity in this case is almost de minimis.