News & Analysis as of

CERCLA Divisibility: Two Strikes and Bases are Loaded

Joint and several liability means one defendant can be liable for all of the damages in a case, even where other defendants are at fault. In the CERCLA arena, this means a potentially responsible party can be forced to pay...more

Superior Court of Pennsylvania Strictly Construes Procedural Requirements Under Pennsylvania’s Mechanics’ Lien Law

Oakdale Equip. Corp. v. Meadows Landing Assocs., LP, 2015 Pa. Super. Unpub. LEXIS 2067 (Pa. Super. Ct. July 8, 2015) - Meadows Landing Associates, LP (“MLA”) contracted with Richard Lawson Excavating, Inc. (“Lawson”) for...more

SEC Action Against Private Fund Adviser Highlights Importance of Proper Expense Apportionment

On November 5, 2015, the Securities and Exchange Commission (SEC) announced that it had reached a settlement with Cherokee Investment Partners, LLC (CIP) and Cherokee Advisers, LLC (CA), affiliated private equity fund...more

Allocation, Due Diligence, and More Record Keeping! New Draft Regulations on New York State’s Corporate Income Tax Allocation

2014 brought significant corporate income tax reform to New York State. This year, 2015, followed suit and brought many of those same corporate income tax reforms to New York City. To quote Donald Trump, these reforms are...more

Single Sales Factor Apportionment May Be Coming to North Carolina

In the last two years, the General Assembly has enacted major changes to North Carolina’s corporate income tax law, including significant rate reductions, elimination of numerous incentive credits and replacement of North...more

A Real Bummer for The Marijuana Industry

As a general rule, in accordance with IRC § 162(a), taxpayers are allowed to deduct, for federal income tax purposes, all of the ordinary and necessary expenses they paid or incurred during the taxable year in carrying on a...more

While The Outcome In the Lower Fox River Case Continues to Change, The Legal Standard For Apportionment Is The Same

In 1832, Abraham Lincoln said that ” it is better to be only sometimes right, than at all times wrong, so soon as I discover my opinions to be erroneous, I shall be ready to renounce them.” Judge Greisbach of Eastern...more

Wynne’s First Casualty: First Marblehead Corp. v. Commissioner

Today, the U.S. Supreme Court vacated the decision of the Massachusetts Supreme Judicial Court (SJC) in First Marblehead Corp. v. Commissioner of Revenue (First Marblehead) and remanded the case back to the court for...more

California Updates Conformity to Internal Revenue Code, Provides Large Corporate Understatement Penalty Relief

Governor Jerry Brown signed Assembly Bill 154 on September 30, 2015, updating California’s general conformity to the Internal Revenue Code and providing three new exceptions to the imposition of the Large Corporate...more

Business Incentive Changes in Recent North Carolina Legislation

The North Carolina General Assembly passed two significant pieces of legislation affecting corporate activity, expansion and new investment in North Carolina. First, the General Assembly passed the state budget...more

Update: Judge Scheindlin Grants Summary Judgment Against Class Member

We previously reported on what we thought at the time were “unusual” arguments from Vivendi Universal, S.A. (“Vivendi”) in its summary judgment motion in opposition to the recovery of certain class-action members in the...more

Court of Appeals Hears Michigan’s Compact Election Cases

The long saga of Michigan's Multistate Tax Compact election continued on Wednesday with oral argument before the Michigan Court of Appeals. A packed courtroom witnessed a 1.5 hour proceeding before an active three-judge...more

Non-Apportioned Damages Awards Can Make Design Patents Highly Valuable

Companies should make design patents a key part of a company’s patent strategy due to the possibility for non-apportioned awards for design patent infringement. For companies manufacturing products in high volume, especially,...more

Court Of Chancery Explains Apportionment In Advancement Case

Not infrequently, a former director may seek to have his attorney fees advanced in two pending matters, only one of which is covered by a corporation’s advancement obligations. An example would be an SEC action coupled with a...more

Multistate Tax Commission Amends the Equitable Apportionment Provision of the Compact and Apportionment Rules for Financial...

Yesterday, the Multistate Tax Commission (MTC) held its annual meeting in Spokane, Washington. The meeting is the annual event where full MTC member states approve model laws in their final version. The approved versions are...more

Multistate Tax Commission Committees Discuss Apportionment Details and an Information-Sharing Program

Yesterday, the Multistate Tax Commission (MTC) held meetings of its Litigation, Uniformity, and Strategic Planning Steering Committees. The meetings were generally dominated by discussions of evolving apportionment issues,...more

Global Tax News - July 2015

EUROPEAN UNION RE-LAUNCHES FORMULARY APPORTIONMENT: KEY POINTS ABOUT THE CCCTB The European Commission has recently released a Communication to the EU Parliament calling for a re-launch of its proposal from 2011...more

Georgia Supreme Court Brings Clarity to Non-Party Fault Under The Apportionment Statute

The Georgia law regarding apportionment of liability in tort cases became more clear this month with the Georgia Supreme Court’s decision in Zaldivar v. Prickett, et al. Before the Court was the question of whether a...more

No “Apportionment” Requirement for Design Patent Damages - Apple, Inc. v. Samsung Elecs. Am., Inc.

Addressing the issue of damages for trade dress and design patents, the U.S. Court of Appeals for the Federal Circuit upheld the bulk of Apple’s roughly $930 million damages award, noting that there is no apportionment...more

PRPs May Want To Dig In With Divisibility Defense

In a victory for potentially responsible parties at multiparty contamination sites, a federal district court in U.S. v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015), held a PRP established that environmental harm at a...more

North Carolina Moves Towards Single Sales Factor and Market Sourcing

An earlier Tax Alert discussed the possibility that North Carolina would adopt the single sales factor method of apportioning the business income of multi-state corporations. During the current legislative session, single...more

Apple v. Samsung: Trade Dress Functionality and Total Profits without Apportionment

The highly publicized Apple v. Samsung litigation saga began in April 2011 when Samsung alleged various infringements of patents and trade dress related to Apple’s iPhone. A jury awarded more than $1 billion in damages. In a...more

PRP in CERCLA Enforcement Action Saves Millions of Dollars with Successful Divisibility Defense

Action Item: On March 15, 2015, the United States District Court for the Eastern District of Wisconsin in United States v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015), held that a potentially responsible party (“PRP”) at...more

Is the Shrinking Availability of Joint And Several Liability In Superfund Cases A Good Thing?

Although it has taken a surprisingly long time, the holding in Burlington Northern which greatly lowered the standard for apportionment in Superfund cases is finally being embraced by lower courts. Last fall I blogged about...more

A Year’s Review of Massachusetts Tax Cases

Allied Domecq Spirits & Wines USA, Inc. v. Comm’r of Revenue, 85 Mass. App. Ct. 1125 (2014) - In a unique case, the Massachusetts Appeals Court affirmed a ruling of the Appellate Tax Board (ATB) that two corporations...more

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