The New Jersey Supreme Court has affirmed, as modified, the facial constitutionality of the Corporation Business Tax "throw-out rule" at N.J.S.A. 54:10A-6(B) (which has since been repealed, effective 7/1/10).
In accordance with the Court's ruling in Whirlpool Properties, the Division has revised its audit policy concerning the application of throw- out to receipts assigned to Nevada, Wyoming, and South Dakota. As discussed by the Court, since these three states do not impose a corporate income tax or a similar business activity tax, the Division will not throw-out receipts assigned to these states.
For receipts assigned to states other than Nevada, Wyoming, and South Dakota, the Whirlpool decision will not result in a change to the Division's throw out policy and its application.
If no further appeal is taken regarding the facial constitutionality of the throw-out rule, the Whirlpool Properties matter will be decided by the Tax Court based on an "as applied" analysis.