Issue: Can the Commissioner of Revenue require a variance from the standard cost of performance methodology provided by law where the majority of the company’s “earnings producing activities” occur outside of Tennessee?
Facts: The Commissioner required Vodafone to vary the standard formula requiring Vodafone to include “as Tennessee sales” its receipts from service provided to customers with Tennessee billing addresses on the basis that the standard method fails to meet the higher goal of fairly representing the business Plaintiffs derive from Tennessee. The trial court affirmed the decision
Appellate Decision: A divided intermediate court affirmed in favor of the Commissioner’s approach on the basis that he acted within the scope of the discretion granted to him. Judge Clement dissented on the basis that the Commissioner failed to identify the kind of “unusual fact situations” contemplated by the statute for a variance.
Review Granted: November 20, 2014.
Prediction: Ben thinks the court will reverse for the reasons provided in the dissent.