I dissent.
Justice Tom Clark wryly observed in Holland v. United States (1954) 348 U.S. 121, 128 [99 L.Ed. 150, 160, 75 S.Ct. 127], that “bare figures have a way of acquiring an existence of their own, independent of the evidence which gave rise to them.” In view of the complexity of the problem involved in this litigation and the box-car figures which seem to have acquired a being of their own, it would be the easiest course to simply agree with the majority and to join in yielding to the taxpayer the substantial immunity he claims. Unfortunately to adopt that course requires us to .embrace the Texas scheme of tax computation in total disdain of this state’s apportionment regulation of more than three decades’ vintage. I can see no persuasive reason for California to assume such magnanimous self-denial.
I need not repeat the facts, the regulations, or the respective claims of the litigants, since they are adequately related in the text of the majority opinion. I pause merely at the outset to observe that California’s procedure for multistate division of the credit differential is entirely consistent with the version recommended to states and approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association House of Delegates. (Cf. 2 Casner, Estate Planning (3d ed., 1976 supp. to vol. 2) p. 1892.) If adopted by all states, California’s apportionment regulation would guard against imposition of combined pick-up and death taxes in excess of the maximum federal credit, for deduction of each state’s death taxes from the credit differential, by definition, enables absorption of only a residual credit differential; and. percentage apportionment of the residual then prevents decedent’s' total tax bill from exceeding the original federal credit. *433Unfortunately some other states exhibit a pecuniary aggressiveness that causes them to misconstrue the concept of pick-up taxes and, instead of apportioning the credit differential by reference to their respective proportions of federal taxable property or available credit differential, appropriate the entire credit differential without regard to either competing claims of sister states or the independent right of other states to impose their death taxes.
While decedent indisputably resided in California at the time of her death and assets comprising her sizeable estate were almost equally divided between Texas and California, the executor has demonstrated a clear preference for Texas by electing to pay the entire sum of $1,863,291.14 in death and pick-up taxes requested by Texas authorities ($797,826.84 in Texas death taxes plus $1,065,464.30 in additional pick-up taxes) but refusing to remit more than $1,509,279.32 of the $2,007,775.19 in total taxes due California, as claimed by the Controller (all of this state’s death taxes but none of the $498,485.87 in pick-up taxes). If the executor had followed the referee’s calculation under the regulation, California could have realized its full share of tax revenue while leaving unaffected whatever assessment Texas chose to make against the estate:
Texas death taxes 797,826.84
Total $2,307,106.16
Total federal credit $3,407,198.33
Less: total death taxes 2,307,106.16
Available credit differential $1,100,092.17
Percent of estate located in Calif. 45.3131
California share of credit differential $ 498,485.87
Instead, the executor disregarded the above method of calculation and now contends that its California tax liability should amount to no more than the reciprocal share of the federal credit remaining after payment of total taxes charged by Texas authorities ($1,863,291.14) without reference to deduction of either state’s death taxes. Thus the executor asks us to embrace the Texas scheme of tax computation and to ignore that adopted by our taxing authority. It is not out of chauvinism that I conclude the California method is equally rational and clearly permissible.
*434The majority correctly note that there are only three Supreme Court decisions addressing the constitutionality of death or pick-up taxes. In each case in which the court found a constitutional violation, it condemned state law for attempting to impose either a direct or an indirect tax on out-of-state property, thereby denying foreign states the right to collect revenue attributable to property lying within their jurisdictions.
California’s regulation, by contrast, specifically eschews any interference with Texas’ right to assess and collect the maximum amount of death and pick-up taxes allowed under Texas and federal law and thus carefully avoids the legal pitfalls of an attempted tax on either out-of-state property or revenue attributable thereto. Accordingly, the leitmotif of the three high court decisions that sketch permissible constitutional boundaries for death and pick-up taxation furnishes persuasive support for sustaining the California regulation.
The first opinion was Maxwell v. Bugbee (1919) 250 U.S. 525 [63 L.Ed. 1124, 40 S.Ct. 2], in which the court upheld a New Jersey death tax that took into account the full value of a nonresident decedent’s multistate assets for determining New Jersey death tax rates. Rejecting the contention that this method of computing the tax resulted in a deprivation of property without due process of law “because it in eifect taxes property beyond the jurisdiction of the State” (id., at p. 539 [63 L.Ed. at p. 1131]), Bugbee approved a rule that permits states to set death tax rates reflective of decedent’s total estate, wherever situated and irrespective of actual jurisdiction to tax.
Six years later, in Frick v. Pennsylvania (1925) 268 U.S. 473 [69 L.Ed. 1058, 45 S.Ct. 603, 42 A.L.R. 316], the high court invalidated the portion of Pennsylvania’s death tax law that sought to impose exactions directly on tangible property, the largest part of which consisted of a New York art collection. The court held that “while a State may so shape its tax laws to reach every object which is under its jurisdiction it cannot give them any extraterritorial operation.” (Id, at p. 489 [69 L.Ed. at p. 1062].) Frick thus emphasizes that a direct tax on out-of-state personal and real property constitutes a reach of constitutionally impermissible dimension.
California’s regulation, when evaluated in light of Frick, must be viewed as steering a course entirely clear of extraterritorial overreaching. Neither on its face nor as applied by the Controller does the regulation purport to exact taxes from property in Texas. On the contrary, the *435regulation’s pick-up authority is expressly limited to “an amount which bears the same ratio to the difference between the total of taxes imposed by all of the states and the maximum state tax credit as the net value of property subject to the Inheritance Tax Laws of this State bears to the net value of property subject to the inheritance tax laws of all the states.” (Italics added.) (Cal. Admin. Code, tit. 18, §§ 13441-13442.) By taxing no more of the credit differential than can be linked directly to decedent’s California estate assets, our regulation transcends the narrow objective of simply avoiding extraterritorial taxation condemned by Frick and serves as an inherent guard against infringement of death or pick-up taxes assessed by Texas.
The executor here relies almost exclusively on the third high court case: Treichler v. Wisconsin (1949) 338 U.S. 251 [94 L.Ed. 37, 70 S.Ct. 1]. He argues that our regulation manifests the same constitutional vice as Wisconsin’s emergency tax, namely, an alleged indirect tax on tangible property located out of state. In reality, however, calculation of California’s pick-up and Wisconsin’s emergency taxes differ in three critical aspects. And while only one such difference formed the basis for invalidation of Wisconsin’s levy in Treichler, all three illustrate ways in which our regulation assures a fairer, more meticulously apportioned determination of pick-up tax than does Wisconsin’s emergency formula.
California’s regulation restricts this state’s share of the credit differential to the apportioned 45.3131 percent of decedent’s estate represented by California assets; we also subtract out all other states’ death taxes. In marked contrast, the Wisconsin emergency tax involves a failing of this precise restriction. In Treichler decedent’s estate consisted of 87.52 percent assets subject to Wisconsin taxing authority and 12.48 percent taxable in Florida and Illinois. Oblivious to the need for apportionment, however, the emergency tax allowed Wisconsin to pick up 100 percent of the federal credit remaining after deduction of Florida and Illinois death taxes—thus including a credit differential properly belonging to Florida and Illinois—and thereby forcing an indirect tax on foreign state property. Affirming the Frick rule that states may neither directly nor indirectly tax tangible out-of-state property, Treichler likened Frick’s illicit death tax to Wisconsin’s emergency tax: “Wisconsin’s statute may be more sophisticated than Pennsylvania’s, but in terms of ultimate consequences this case and the Frick case are one. It is quite unnecessary to know in either case what property is located within the taxing jurisdiction in order to compute the challenged exaction.” (Id., at p. 256 [94 L.Ed. at p. 42].)
*436California’s regulation departs markedly from the nonapportioning, pecuniarily acquisitive approach exemplified by the condemned Wisconsin emergency tax. The very essence of our regulation is a strict limitation on pick-up taxation according to the exact percentage of decedent’s property located within this state’s taxing jurisdiction and a complete deference to both death and pick-up taxes claimed by other jurisdictions. Therefore, unlike Frick and Treichler, our regulation asserts no direct or indirect claim to death taxes assessed by Texas and leaves totally untouched Texas’ 54.6869 percent share of federal credit subject to that state’s pick-up authority. Unlike Wisconsin’s emergency tax, moreover, our pick-up regulation deducts the full impact of California death taxes prior to calculation; we thus ensure that our own death taxes will be assessed only once. Finally, while Wisconsin’s emergency tax required that a flat 30 percent rate be employed, once again heedless to the proportion of estate property subject to tax by that state, our regulation contains no fixed percentages that disregard out-of-state property.
In the years since Treichler the high court has not issued a single decision dealing with the constitutionality of death or pick-up taxes challenged for their jurisdictional reach. Several opinions addressing the constitutional imposition of state use and gross receipts taxes, however, provide a clear indication that contemporary judicial tolerance for the jurisdictional reach of state taxation is considerably broader than in 1949 when Treichler was decided. (See, e.g., Complete Auto Transit, Inc. v. Brady (1977)430 U.S. 274 [51 L.Ed.2d 326,97 S.Ct. 1076]; Scripto v. Carson (1960) 362 U.S. 207 [4 L.Ed.2d 54, 80 S.Ct. 52]; Standard Steel Co. v. Wash. Revenue Dept. (1975) 419 U.S. 560 [42 L.Ed.2d 719, 95 S.Ct. 706]; for the California approach, see Sea-Land Service, Inc. v. County of Alameda (1974) 12 Cal.3d 772, 781-788 [117 Cal.Rptr. 448, 528 P.2d 56].) This unmistakable trend of tolerance for state taxation serves to emphasize the weak foundation upon which Treichler rests.
As I have indicated above, the instant matter is readily distinguishable from Treichler, but even if not, that case may not be read to undérmine in any way the California regulation’s constitutional reach. Even if the majority’s interpretation of Treichler were convincing, there is sufficient doubt of Treichler’s continued vitality to render its precedential value very slight. Certainly it should not control our determination of the validity of a regulation of this state that has survived more than three decades.
*437Basically the executor complains of California’s comparatively larger total tax bill notwithstanding Texas jurisdiction over a greater proportion of decedent’s total estate. He overlooks the underlying reason: Texas residents enjoy a death tax rate considerably lower than the prevailing California rate. (Compare Rev. & Tax. Code, §§ 13404-13406 with Tex. Tax-Gen. Ann., arts. 14.02-14.06, and art. 14.12, subd. (D) (Vernon).) Due to the sizeable variation in death tax rates, California’s smaller share of the credit differential ($498,485.87 versus $1,065,464.30 for Texas), while reflecting a perfectly apportioned share of estate assets wholly within this state’s jurisdiction, nevertheless fails to offset the larger combined death and pick-up tax burden assessed by California ($2,007,775.19 versus $1,863,291.14 for Texas).
Ignoring the independent legitimacy of California entitlement to assess death and other taxes on in-state property at whatever nonconfiscatory rate is desired (see, e.g., Estate of Good (1963) 213 Cal.App.2d 45, 48-50 [28 Cal.Rptr. 378]; Pittsburgh v. Alco Parking Corp. (1974) 417 U.S. 369, 373-378 [41 L.Ed.2d 132, 136-139, 94 S.Ct. 2291]), the executor lumps together death and pick-up taxes for purposes of interstate comparison, discovers that total taxes in California ($2,007,765.19) slightly surpass the total in Texas ($1,863,291.14), and concludes that section 2011 of the Internal Revenue Code of 1954 constitutionally prevents California from levying taxes of more than 45.3131 percent of the entire federal credit. The conclusion is entirely unfounded, for the federal government under section 2011 in no way attempts to influence the rate or application of California death taxes. Death taxes remain purely within the discretion of individual states, and the federal credit statute does no more than encourage states to pick up the maximum amount of federal estate tax dollars returnable under its aegis to the state treasury.
The executor next contends that since California’s aggregate death and pick-up tax obligation exceeds 45.3131 percent of the federal credit, the regulation operates discriminatorily and actually imposes an unconstitutional tax on part of the estate’s Texas assets. Whatever inequality occurs in the system, however, derives from factors extraneous to the operation of the California regulation and owes its existence to accepted legal rules. In accounting for larger aggregate death and pick-up taxes in this state than in Texas, once again the simple explanation is that California imposes death taxes on assets within its jurisdiction at higher rates than Texas. Case law clearly provides that states have an independent right to a proportionate share of the credit differential irrespective of whether *438double or triple payments are thereby mandated. Thus Estate of Good, supra, 213 Cal.App.2d 45 and Estate of Amar (1967) 255 Cal.App.2d 404 [63 Cal.Rptr. 444], properly spumed due process and equal protection challenges to the pick-up tax and held that estate taxpayers must pay California its full share of the credit differential regardless of whether another taxing entity, such as the federal government, collects the same credit differential, refuses to refund any part of that credit differential to this state or the executor, and thereby forces double or multiple taxation in excess of the calculated credit differential. The United States Treasury, moreover, has accepted the principles of Good and Amar. (See Rev. Rul. 70-272, 1970-1 Cum. Bull. 187.) That ruling provides that taxation of the same asset by two different states, even if deemed double taxation, qualifies under the federal credit and will be honored by the federal government.
California is therefore empowered, without necessary reliance on any of the regulation’s allegedly discriminatory features, to pick up its proportionate 45.3131 percent share of the credit differential and, further, to collect death taxes on estate assets within this state’s jurisdiction at higher rates than Texas imposes on property subject to its jurisdiction.
The executor’s characterization of the regulation as discriminatory, therefore, disregards this state’s recognized, autonomous rights and misdirects responsibility for multistate discrepancies.1 Ascribing blame for such discrepancies to incomplete federal credit provisions that fail to apportion at the federal level, the Florida Supreme Court observed: “[T]he defect is in the federal law which does not require the proper allotment of the credit as between the states having taxable interest in the property belonging to the estate of a particular decedent.” (Green v. State (Fla. 1964) 166 So.2d 585, 590.) In my opinion the regulation operates free of discriminatory shortcomings and in furtherance of the state’s revenue-generating interest.
Lastly and as somewhat of an afterthought, the executor maintains that the regulation constitutes an improper delegation of administrative authority. Statutory delegation of authority in the present case confers *439upon the Controller a broad grant of power to issue, administer, and enforce death and pick-up tax regulations. Specifically, Revenue and Taxation Code section 14740 provides that “The Controller may make and enforce rules and regulations relating to the administration and enforcement of [death and pick-up taxes], and may prescribe the extent, if any, to which any ruling or regulation shall be applied without retroactive effect.”
The Controller responds that the regulation furthers equitable administration and enforcement of the pick-up tax in two distinct ways: (1) it respects other states’ death taxes by subtracting out their full amounts before seeking to retain any portion of the federal credit, and (2) it promotes equality by apportioning the credit differential according to the percentage of decedent’s property subject to each state’s jurisdiction. Thus, years prior to Treichler and the uniform act, the Controller perceptively anticipated the future direction in the death tax field and structured California’s system accordingly. The Controller could and did reasonably conclude, as early as 1945, that the Legislature’s unambiguous grant of administration, enforcement, and prescription power over pick-up tax rules and regulations justifiably warranted adoption of the regulation to promote its objectives of deference and equitable apportionment. The regulation, therefore, should be sustained as a reasonable delegation of authority.
Finally, we must ascertain whether the regulation is “reasonably necessary.” In so doing this court should defer to the agency’s expertise and refuse to “superimpose its own policy judgment upon the agency in the absence of an arbitrary and capricious decision.” (Pitts v. Perluss (1962) 58 Cal.2d 824, 832 [27 Cal.Rptr. 19, 377 P.2d 83]; accord, Morris v. Williams (1967) 67 Cal.2d 733, 749 [63 Cal.Rptr. 689, 433 P.2d 697]; Agricultural Labor Relations Board v. Superior Court (1976) 16 Cal.3d 392, 441 [128 Cal.Rptr. 183, 546 P.2d 687], app. dism. (1976) 429 U.S. 802 [50 L.Ed.2d 63, 97 S.Ct. 33, 34].) Nor, in passing judgment on the Controller’s decision to adopt the particular regulation under challenge, may we consider the possible sagacity or superiority of alternatives: “[T]his court does not inquire whether, if it had power to draft the regulation, it would have adopted some method or formula other than that promulgated by the [agency]. The court does not substitute its judgment for that of the administrative body.” (Pitts v. Perluss, supra, 58 Cal.2d 824, 834-835.) Thus we must not venture to speculate, for example, on the economic advisability or purported advantages of an apportionment formula that calculates this state’s share of the federal *440credit on a gross rather than net basis. To undertake the task of second-guessing the Controller would exceed the bounds of judicial propriety, frustrate the legislative policy of reliance upon the special competence of an administrative agency, and transgress our narrow function of determining only whether the Controller employs a reasonable, nonarbitrary method to further the administrative purpose. (See Ralph’s Grocery Co. v. Reimel (1968) 69 Cal.2d 172, 180 [70 Cal.Rptr. 407, 444 P.2d 79].)
^ In sum I cannot agree that the Controller’s decision to use a regulation that encourages equitable apportionment and total noninterference with sister state death tax exactions is arbitrary or capricious in violation of what constitutes “reasonable necessity.” If anything the regulation makes an uncommon attempt to achieve both deference and equity in an arena often identified as rife with tax-gathering aggressiveness and chauvinism. It deserves to be sustained.
I would reverse the trial court’s order and reinstate the tax referee’s determination requiring the executor to pay the Controller $498,485.87 in delinquent taxes.
As stated in the context of death taxation by the high court in Bugbee, “inequalities that result not from hostile discrimination, but occasionally and incidentally in the application of a system that is not arbitrary in its classification, are not sufficient to defeat the law.” (Maxwell v. Bugbee, supra, 250 U.S. 525, 543 [63 L.Ed. 1124, 1133]; accord, Estate of Good, supra, 213 Cal.App.2d 45, 52; see also Sea-Land Service, Inc. v. County of Alameda, supra, 12 Cal.3d 772, 780.)