Why the Supreme Court Should Grant Certiorari in Steiner v. Utah

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The taxpayer in Steiner v. Utah State Tax Commission, a 2019 decision by the Utah Supreme Court, has petitioned for certiorari to the U.S. Supreme Court. This article argues that the Supreme Court should grant certiorari (1) to confirm that the internal consistency test applies to international income, (2) to correct the errors of the Utah court, and (3) to communicate to the state courts — at least two of which have ignored the Court’s 2015 decision in Comptroller of the Treasury v. Wynne — that Wynne is now the standard for evaluating state tax discrimination cases under the dormant commerce clause and that Wynne calls for application of the internal consistency test. This article further argues that the Utah Supreme Court did not apply the dormant foreign commerce clause correctly in Steiner because it did not apply the internal consistency test. This may reflect a genuine belief on the Utah Supreme Court’s part that the internal consistency test does not apply to foreign commerce. It also may be due to the Utah court’s evident hostility to dormant commerce clause analysis generally. Either explanation for the errors in the Utah court’s decisions would be reason enough for the Supreme Court to grant certiorari in the case. To the extent that genuine confusion about how to conduct nondiscrimination analysis involving international income stymied the Utah court, this article briefly provides guidance as to how to apply Wynne to foreign commerce. Such application is simple and straightforward. To the extent that the Utah court’s decision was attributable to hostility to Wynne or the dormant commerce clause more generally, we make some observations about the obligations of state courts to follow Supreme Court precedent and the importance of Wynne as limiting, rather than expanding, the dormant commerce clause, and as giving courts a principled and predictable method for resolving dormant commerce clause cases. The Supreme Court should thus reaffirm Wynne, the most important advance in dormant commerce clause tax discrimination analysis in more than 40 years, and the best hope for pulling dormant commerce clause analysis out of its doctrinal quagmire.


Steiner v. Utah State Tax Commission, SCOTUS, Utah Supreme Court, dormant commerce clause

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Tax Notes State