____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

Michigan Supreme Court

Lansing, Michigan 48909 

C hief Justice Justices

Maura D. Corrigan	 Michael F. Cavanagh

Elizabeth A. Weaver 

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr. Opinion Stephen J. Markman 

FILED JULY 3, 2001
 

TIG INSURANCE COMPANY, INC., 

Plaintiff-Appellee, 

v No. 115915 

REVENUE DIVISION, DEPARTMENT

OF TREASURY, STATE OF MICHIGAN, 

Defendant-Appellant. 

________________________________ 

TIG PREMIER INSURANCE COMPANY, INC., 

Plaintiff-Appellee, 

v No. 115916 

REVENUE DIVISION, DEPARTMENT

OF TREASURY, STATE OF MICHIGAN, 

Defendant-Appellant. ________________________________ 

BEFORE THE ENTIRE BENCH 

CAVANAGH, J. 

These consolidated cases require us to decide whether a
 

1988 amendment of the Michigan Insurance Code’s retaliatory
 

tax, MCL 500.476a, deprived plaintiffs TIG Insurance Company
 
and TIG Premier Insurance Company of equal protection of the
 

laws under US Const, Am XIV and Const 1963, art 1, § 2, or
 

violated the Uniformity of Taxation Clause of Const 1963, art
 

9, § 3. Absent an imposition on a fundamental right or a
 

suspect class, tax legislation is reviewed to determine
 

whether its classifications bear a rational relation to a
 

legitimate state purpose. We conclude that the 1988
 

amendments of the retaliatory tax, which changed the tax
 

calculation, are rationally related to the legitimate state
 

purpose of promoting the interstate business of domestic
 

insurers, the same legitimate purpose behind the retaliatory
 

tax itself. Thus, the amendments of the retaliatory tax do
 

not violate equal protection, and also do not violate the
 

Uniformity of Taxation Clause. Accordingly, the judgment of
 

the Court of Appeals is reversed.
 

I
 

This case involves the retaliatory tax that Michigan
 

imposes on foreign insurers doing business in Michigan. Under
 

the retaliatory tax, when an insurer’s state of incorporation
 

imposes a larger aggregate tax burden on a Michigan insurer
 

doing business in that state than Michigan imposes on a
 

company from that state doing business in Michigan, the
 

foreign insurer must pay Michigan a tax equal to the
 

difference in the aggregate tax burdens. See MCL 500.476a.
 

Thus, to compute the retaliatory tax due from a foreign
 

insurer, if any, Michigan tallies all the taxes, fines,
 

penalties, and other burdens it otherwise imposes on the
 

foreign insurer doing business in Michigan. Michigan then
 

tallies the burden a hypothetical Michigan insurer would pay
 

2
 
to that insurer’s home state were the hypothetical Michigan
 

insurer doing the same amount of business there. If the other
 

state’s total burden on the hypothetical Michigan insurer
 

doing the same amount of business in that state would be
 

larger than the burden Michigan imposed on the foreign
 

insurer, the actual burden Michigan imposes is subtracted from
 

the other state’s burden on the hypothetical insurer, and the
 

difference is the retaliatory tax the foreign insurer owes
 

Michigan. These taxes have been common in insurance taxation
 

since the nineteenth century, see Western & Southern Life Ins
 

Co v State Bd of Equalization, 451 US 648, 668; 101 S Ct 2070;
 

68 L Ed 2d 514 (1981), and Michigan has had a form of a
 

retaliatory tax since 1871. See 1871 PA 80, § 4 (adding what
 

was then § 28 to the insurance code). 


Until 1987, the retaliatory tax was one of two taxes
 

imposed on foreign insurers. The other was the premiums tax,
 

MCL 500.440, repealed by 1987 PA 261, which taxed a percentage
 

of the insurers’ business. However, in 1987, the Court of
 

Appeals held that the premiums tax violated equal protection,
 

and struck it as unconstitutional. See Penn Mut Life Ins Co
 

v Dep’t of Licensing & Reg, 162 Mich App 123, 130-133; 412
 

NW2d 668 (1987). After the Court of Appeals decision in Penn
 

Mutual, which was not appealed to this Court, the Legislature
 

revised the Michigan Insurance Code tax provisions by
 

repealing the premiums tax, subjecting foreign insurers
 

instead to the Single Business Tax, MCL 208.1 et seq., and
 

repealing and reenacting the retaliatory tax. See 1987 PA
 

261, 262. The new retaliatory tax, MCL 500.476a, mirrored the
 

prior retaliatory tax. However, the revision added subsection
 

3
 
(2), stating that “[T]he purpose of this section is to promote
 

the interstate business of domestic insurers by deterring
 

other states from enacting discriminatory or excessive taxes.”
 

In 1988, actual revenue from insurance taxes was below
 

the level of projected revenue the Legislature had relied upon
 

in enacting 1987 PA 261 and 262. One of the reasons that
 

revenue was lower than expected was that foreign insurers were
 

including assessments paid to private insurance associations
 

and facilities, such as the Worker’s Compensation Placement
 

Facility, among their Michigan burdens when calculating their
 

retaliatory taxes. When these assessments were included in
 

the foreign insurers’ Michigan burden, their Michigan burden
 

grew larger, and any differences between the Michigan burden
 

and the burden the insurers’ home states imposed shrank. The
 

result was less retaliatory tax revenue.
 

After these facts were clear, the Legislature enacted
 

1988 PA 349. This provision did not affect the retaliatory
 

tax’s scope. Instead, it only changed the method of
 

calculating the tax by providing that payments to private
 

insurance associations and facilities are not counted as part
 

of the Michigan burden when calculating retaliatory taxes.
 

The resulting statute provides:
 

(5) Any premium or assessment levied by an


association or facility, or any premium or
 

assessment of a similar association or facility


formed under a law in force outside this state, is


not a burden or special burden for purposes of a


calculation under section 476a, and any premium or


assessment paid to an association or facility shall


not be included in determining the aggregate amount


a foreign insurer pays to the commissioner under


section 476a.
 

(6) As used in this section, “association or


facility” means an association of insurers created
 

4
 
 

under this act and any other association or
 

facility formed under this act as a non-profit


organization of insurer members, including, but not


limited to, the following:
 

(a) The Michigan worker’s compensation


placement facility created under [MCL 500.2301 et
 

seq.]
 

(b) The Michigan basic property insurance


association created under [MCL 500.2901 et seq.]
 

(c) The catastrophic claims association
 

created under [MCL 500.3101 et seq.]
 

(d) The Michigan automobile insurance
 

placement facility created under [MCL 500.3301 et
 

seq.]
 

(e) The Michigan life and health insurance


placement facility created under [MCL 500.7701 et
 

seq.]
 

(f) The property and casualty guaranty


association created under [MCL 500.7901 et seq.]


[MCL 500.134(5), (6).][1]
 

Hence, payments to these and other similar facilities are not
 

part of the Michigan burden on foreign insurers, and such
 

payments required by other states cannot be considered part of
 

those states’ burden when calculating retaliatory taxes.
 

The dispute in this case originally involved plaintiffs’
 

retaliatory tax returns for 1990, 1991, and 1996. In those
 

years, plaintiffs had made payments to the Worker’s
 

Compensation Placement Facility, the Basic Property Insurance
 

Association, and the Automobile Insurance Placement Facility.
 

Subsections 134(5) and (6), however, required plaintiffs to
 

exclude those payments from their Michigan burdens when
 

calculating the retaliatory tax they owed. Plaintiffs
 

initially excluded these payments from their Michigan burden
 

1 The Michigan Assigned Claims Facility created under MCL


500.3171 was subsequently added to the statute as subsection


6(g). See 1990 PA 256.
 

5
 
and fully paid their retaliatory tax for each year. Later,
 

though, they filed amended returns that included these
 

payments in their Michigan burdens, claiming that requiring
 

them to exclude the payments violated the Equal Protection
 

Clauses of the state and federal constitutions, as well as the
 

Uniformity of Taxation Clause of the Michigan Constitution.
 

Plaintiffs, therefore, sought a refund of the alleged
 

unconstitutional overcharge. Defendant, however, denied
 

refunds for all three years.
 

Plaintiffs appealed the denial of refunds to the Michigan
 

Court of Claims, which consolidated their cases. The Court of
 

Claims held that MCL 500.134(5) violates equal protection
 

because it was enacted to raise revenue rather than to deter
 

other states from imposing discriminatory or excessive taxes
 

on Michigan insurers doing business in those other states.
 

Also, the court held that plaintiffs’ 1990 and 1991 claims
 

were time-barred by MCL 205.27a(6). The court, therefore,
 

ordered defendant to pay plaintiffs refunds consistent with
 

their amended 1996 retaliatory tax returns.
 

Both parties appealed, and the Court of Appeals affirmed.
 

That Court believed that when the Legislature revised the
 

retaliatory tax in 1987, the Legislature did not intend to
 

change the definition of “burden,” and later did so only
 

because revenues did not meet expectations. Thus, the Court
 

concluded that equal protection was violated because it was
 

“abundantly clear that 1988 PA 349 was enacted as a stop-gap
 

measure to raise funds in response to a projected shortfall in
 

insurance tax revenues. This is not a valid reason for
 

discriminating against foreign insurers.” 237 Mich App 219,
 

6
 
230; 602 NW2d 839 (1999). The Court of Appeals also affirmed
 

the Court of Claims conclusion that plaintiffs’ 1990 and 1991
 

claims were time-barred, leaving plaintiffs with a judgment
 

for refunds for 1996. Defendant appealed the Court of Appeals
 

conclusion that 1988 PA 349 violates equal protection, we
 

granted leave, 463 Mich 905 (2000), and we now reverse.
 

II
 

The United States Supreme Court addressed the
 

constitutionality of retaliatory taxes in Western & Southern
 

Life Ins Co v State Bd of Equalization, supra. In that case,
 

California had adopted a retaliatory tax similar to
 

Michigan’s, and an Ohio corporation challenged its
 

constitutionality. The Supreme Court noted that several
 

provisions of the constitution generally limit states’ ability
 

to regulate foreign corporations, but under the Commerce
 

Clause, US Const, art 1, § 8, Congress has delegated insurance
 

regulation to the states, see 15 USC 1011 et seq., and the
 

privileges and immunities clause, US Const, art 4, § 2, does
 

not apply to corporations, see Hemphill v Orloff, 277 US 537,
 

548-550; 48 S Ct 577; 72 L Ed 978 (1928), leaving only the
 

Equal Protection Clause as a basis for the challenge. Western
 

& Southern at 656. After reviewing its prior decisions, the
 

Court concluded that a state’s authority to treat foreign
 

corporations differently than domestic corporations should be
 

upheld if the different treatment bears a rational relation to
 

a legitimate state purpose. California’s retaliatory tax, the
 

Court held, had the legitimate state purpose of promoting
 

domestic insurers in other states by discouraging other states
 

from excessively taxing domestic insurers. The tax was
 

7
 
reasonably related to that purpose because the California
 

Legislature could have believed that the tax would “induce
 

other States to lower the burdens on California insurers in
 

order to spare their domestic insurers the cost of the
 

retaliatory tax in California.” Id. at 672. Thus, the
 

Supreme Court confirmed that retaliatory taxes do not violate
 

equal protection, and do not violate the constitution.
 

In light of Western & Southern, the general
 

constitutionality of Michigan’s retaliatory tax is clear. The
 

question in this case surrounds 1988 PA 349. That amendment
 

of Michigan’s retaliatory tax did not change the
 

classification plan drawn by Michigan’s retaliatory tax.
 

Rather, it only changed the calculation method of a foreign
 

insurer’s Michigan burden by providing that payments to
 

certain private insurance associations and facilities are not
 

included in the burden. Whether the amendment violates the
 

state or federal Equal Protection Clauses, which are
 

coextensive, see Armco Steel v Dep’t of Treasury, 419 Mich
 

582, 591; 358 NW2d 839 (1984), or Michigan’s Uniformity of
 

Taxation Clause, which is not discernably different from equal
 

protection in cases involving tax statutes, see id. at 592,
 

presents a question of law. We review questions of law de
 

novo. See Tolksdorf v Griffith, 464 Mich 1; ___ NW2d ___
 

(2001).
 

As Western & Southern declared, rational basis review
 

applies in challenges of retaliatory taxes. “Rational basis
 

review does not test the wisdom, need, or appropriateness of
 

the legislation, or whether the classification is made with
 

‘mathematical nicety,’ or even whether it results in some
 

8
 
inequity when put into practice.” Crego v Coleman, 463 Mich
 

248, 260; 615 NW2d 218 (2000). Rather, it tests only whether
 

the legislation is reasonably related to a legitimate
 

governmental purpose. The legislation will pass
 

“constitutional muster if the legislative judgment is
 

supported by any set of facts, either known or which could
 

reasonably be assumed, even if such facts may be debatable.”
 

Id. at 259-260. To prevail under this standard, a party
 

challenging a statute must overcome the presumption that the
 

statute is constitutional. Thoman v Lansing, 315 Mich 566,
 

576; 24 NW2d 213 (1946). Thus, to have the legislation
 

stricken, the challenger would have to show that the
 

legislation is based “solely on reasons totally unrelated to
 

the pursuit of the State’s goals,” Clements v Fashing, 457 US
 

957, 963; 102 S Ct 2836; 73 L Ed 2d 508 (1982), or, in other
 

words, the challenger must “negative every conceivable basis
 

which might support” the legislation. Lehnhauser v Lake Shore
 

Auto Parts Co, 410 US 356, 364; 93 S Ct 1001; 35 L Ed 2d 351
 

(1973).
 

In this case, plaintiffs claim that Michigan has exceeded
 

its authority to treat foreign corporations differently than
 

domestic corporations because the different treatment does not
 

bear a rational relation to a legitimate state purpose. This
 

is so, plaintiffs claim, because 1988 PA 349, which excluded
 

certain payments from plaintiffs’ Michigan burdens for
 

retaliatory tax calculations, converted the retaliatory tax
 

from a tax intended to discourage other states from imposing
 

excessive levels of taxation on Michigan insurers to a tax
 

designed to raise revenue at the expense of foreign insurers.
 

9
 
Thus, plaintiffs argue that the 1988 amendment of the
 

retaliatory tax cannot be constitutional.
 

Initially, we emphasize that Michigan’s retaliatory tax
 

has never, either before or after the 1988 amendment, treated
 

foreign insurers as a single class. Rather, the subset of
 

foreign insurers that must pay Michigan any retaliatory tax is
 

actually determined by the laws of other states.
 

Specifically, the subset is determined by the laws of those
 

states that impose more onerous burdens on Michigan insurers
 

than Michigan imposes on insurers from those states. The
 

Supreme Court made this same observation about the retaliatory
 

tax it held constitutionally permissible in Western &
 

Southern, stating that “[t]he retaliatory tax is not imposed
 

on foreign corporations qua foreign corporations, as would be
 

expected were the purpose of the tax to raise revenue from
 

noncitizens; rather, it is imposed only on corporations whose
 

home States impose more onerous burdens on California insurers
 

than California otherwise would impose on those corporations.”
 

Western & Southern at 670, n 23. 


Absent a change in the legislative classification, we
 

cannot agree with plaintiffs’ claim that a 1988 amendment
 

converted the retaliatory tax into a tax designed to raise
 

revenue from foreign insurers. Rather, the selective
 

imposition of the tax on only those insurers incorporated in
 

states that tax Michigan insurers more heavily than Michigan
 

taxes them indicates that the purpose of the legislation is to
 

pressure those states to relieve the tax burden on Michigan
 

insurers doing business in those states. This is the precise
 

purpose the Legislature stated for adopting the retaliatory
 

10
 
tax, see MCL 500.476a(2), and the same purpose the Supreme
 

Court found “not difficult to discern” in Western & Southern
 

at 668. Further, in Western & Southern, the Supreme Court
 

held, without discussing the means a state may adopt to
 

calculate the retaliatory tax, that states are reasonable to
 

suppose that a retaliatory tax will induce other states to
 

lower their insurance tax rates. Id. at 672. Even with the
 

change in the method of calculation of the burden of
 

Michigan’s retaliatory tax, the tax remains rationally related
 

to this legitimate purpose, and plaintiffs cannot prevail.
 

However, even presuming that 1988 PA 349 can somehow be
 

viewed separately from Michigan’s retaliatory tax structure,
 

the Legislature could have rationally decided to exclude
 

payments to certain insurance associations and facilities from
 

Michigan’s retaliatory tax burden. The three facilities in
 

this case, the Worker’s Compensation Placement Facility, the
 

Automobile Insurance Placement Facility, and the Basic
 

Property Insurance Association, exist to provide insurance
 

coverage to insureds that may be unable to “procure the
 

insurance through ordinary methods.” MCL 500.2301(a); see
 

also MCL 500.3301(a) and MCL 500.2925 (describing eligibility
 

for Basic Property Insurance). Because high risk or otherwise
 

uninsurable insureds are provided for outside the normal
 

insurance market, insurers doing business in Michigan need not
 

bear the risks of insuring them, at least arguably benefitting
 

such insurers. The Legislature could have believed that if it
 

did not require payments to these facilities not to be
 

excluded from the retaliatory tax burden, other states would
 

not be discouraged from establishing similar facilities to
 

11
 
 

grant the same benefit to insurers doing business in those
 

states, including Michigan insurers. Indeed, if another state
 

had facilities and associations that paralleled the facilities
 

and associations mentioned in MCL 500.134, then any
 

retaliatory tax that insurers from the other state may owe
 

Michigan would not be affected by 1988 PA 349 at all.2 Again,
 

then, the Legislature could have had the permissible purpose
 

of promoting domestic insurers abroad, the same purpose it
 

stated in the retaliatory tax legislation. Because it is at
 

least debatable that excluding payments to such facilities
 

from Michigan’s retaliatory tax burden would encourage other
 

states to establish such facilities, the 1988 amendment is
 

rationally related to a legitimate purpose, and is not
 

constitutionally infirm.
 

Plaintiffs maintain, however, that the 1988 amendment
 

conflicts with the Supreme Court’s decision in Western &
 

Southern because it was designed entirely “to generate revenue
 

at the expense of out-of-state insurers.” As we have
 

explained, the tax does not affect foreign insurers as a
 

single class. Further, though, plaintiffs overlook the
 

presumption of constitutionality, and cannot account for the
 

legitimate bases of the legislation. Instead, plaintiffs seek
 

one possible illegitimate basis for the legislation.
 

Plaintiffs’ approach conflicts with Supreme Court precedent
 

because they have not shown that the legislation rests “solely
 

on reasons totally unrelated to the pursuit of the State’s
 

2 We note that several other states similarly exclude


payments to special associations and facilities from their


retaliatory tax burdens. See, e.g., Conn Gen Stat, 12-211;


215 Ill Comp Stat, 5/444.1(2).
 

12
 
goals . . . .” Clements at 963. Because there is at least
 

one conceivable rational basis that might support the
 

legislation, plaintiffs have not “negative[d] every
 

conceivable basis which might support” it, and cannot prevail.
 

Lehnhauser at 364.
 

In response, plaintiffs have argued that they need not
 

negate every conceivable basis for the legislation. This is
 

because, they claim, in equal protection cases, the Court
 

“need not . . . accept at face value assertions of legislative
 

purposes, when an examination of the legislative scheme and
 

its history demonstrates that the asserted purpose could not
 

have been a goal of the legislation.” Weinberger v
 

Weisenfeld, 420 US 636, 648, n 16; 95 S Ct 1225; 43 L Ed 2d
 

514 (1975). However, as discussed, an examination of the
 

legislative scheme in this case indicates that the asserted
 

purpose could well have been the goal of the legislation. For
 

plaintiffs to prevail, they must negate every conceivable
 

basis of the legislation. Because plaintiffs have not, they
 

cannot prevail.
 

Finally, plaintiffs attempt to distinguish this case from
 

Western & Southern by arguing that the tax revenue generated
 

in that case was “relatively modest,” see Western & Southern
 

at 669, but under the amendment, Michigan’s retaliatory tax
 

immodestly generates over a third of Michigan’s insurance tax
 

revenue. As a preliminary point, the fact that the
 

retaliatory tax raises revenue does not prove that raising
 

revenue was the state’s goal in adopting the tax. On rational
 

basis review, this Court only considers whether the
 

legislation is reasonably related to a legitimate purpose, and
 

13
 
does not test for “some inequity when [the legislation is] put
 

into practice.” Crego at 260. But further, though the
 

Western & Southern Court’s statement strikes us simply as an
 

observation and not, as plaintiffs contend, as the linchpin of
 

the Court’s analysis, even if it is an important point, this
 

case is distinguishable. Michigan’s retaliatory tax may
 

generate a third of Michigan’s insurance tax revenue, but the
 

Supreme Court did not state that the retaliatory tax it
 

approved raised a relatively modest amount of insurance tax
 

revenue, just that it raised a modest amount of revenue. The
 

joint appendix shows that although Michigan raised
 

approximately $67 million annually in retaliatory taxes for
 

the years 1991 through 1995, for example, when compared with
 

Michigan’s overall tax revenue for that period, which ranged
 

from $10.5 billion to $17.2 billion annually, see Michigan
 

Dep’t of Treasury, Annual Report of the State Treasurer
 

(1996), p 25, retaliatory tax revenue is certainly “relatively
 

modest.” Thus, even if retaliatory tax revenue must be
 

modest, as compared with Michigan’s overall tax revenue,
 

retaliatory tax revenue is not immodestly large, and
 

plaintiffs again have not shown Michigan’s retaliatory tax or
 

1998 PA 349 to be unconstitutional. Again, plaintiffs cannot
 

prevail.
 

III
 

In conclusion, neither Michigan’s retaliatory tax nor the
 

1988 amendment of that tax violates the state or federal
 

constitutions, which are coextensive in their equal protection
 

provisions. The retaliatory tax, and the amendments of it,
 

are rationally related to the legitimate governmental purpose
 

14
 
of promoting Michigan insurers in other states. Because the
 

tax and its amendment do not violate equal protection, they
 

also do not violate the Michigan Constitution’s Uniformity of
 

Taxation Clause, which is not discernibly different from the
 

Equal Protection Clause when the constitutionality of a tax
 

statute is being reviewed. Plaintiffs have not carried their
 

considerable burden, and the judgment of the Court of Appeals
 

is reversed.
 

CORRIGAN, C.J., and WEAVER, TAYLOR, YOUNG, and MARKMAN, JJ.,
 

concurred with CAVANAGH, J.
 

15
 
S T A T E O F M I C H I G A N
 

SUPREME COURT
 

TIG INSURANCE COMPANY, INC., 

Plaintiff-Appellee, 

v No. 115915 

REVENUE DIVISION, DEPARTMENT

OF TREASURY, STATE OF MICHIGAN, 

Defendant-Appellant. ____________________________________ 

TIG PREMIER INSURANCE COMPANY, INC., 

Plaintiff-Appellee, 

v No. 115916 

REVENUE DIVISION, DEPARTMENT

OF TREASURY, STATE OF MICHIGAN, 

Defendant-Appellant. ____________________________________ 

KELLY, J. (concurring). 

While I agree with the conclusion reached by the
 

majority, I write separately to state my disagreement with
 

certain of the reasoning it employs. Whereas the majority
 

articulates what would be legitimate purposes for adoption of
 

the amendment, it completely ignores the evidence presented by
 

plaintiffs. This evidence throws into doubt whether the
 

Legislature's actual purpose was legitimate, as it has to be
 

in order to conform with precedent from the United States
 
 

Supreme Court.
 

The states cannot impose more onerous taxes or other
 

burdens on foreign corporations than on domestic corporations,
 

unless they bear a rational relation to a legitimate state
 

purpose. Western & Southern Life Ins Co v State Bd of
 

Equalization, 451 US 648, 667-668; 101 S Ct 2070; 68 L Ed 2d
 

514 (1981). A retaliatory tax act, like that in question,
 

makes of foreign corporations a special classification of
 

taxpayers. 


In evaluating the constitutionality of a challenged
 

classification, we must consider two separate issues. First,
 

whether the statute in question advances a legitimate purpose
 

and, second, whether, in passing it, the Legislature
 

reasonably could have believed that the classification would
 

promote that purpose. Id. at 668. Only after a legitimate
 

purpose is ascertained does a rational relationship between
 

the classification and purpose become relevant. See
 

Metropolitan Life Ins Co v Ward, 470 US 869, 881; 105 S Ct
 

1676; 84 L Ed 2d 751 (1985).
 

While this two-step inquiry does not require that the
 

Legislature articulate its purpose in forming the challenged
 

classification, it does require that a conceivable or
 

reasonable purpose exist. Nordlinger v Hahn, 505 US 1, 15;
 

112 S Ct 2326; 120 L Ed 2d 1 (1992). The United States
 

Supreme Court rejected the proposition that promotion of
 

domestic industry is always a legitimate purpose, reasoning
 

that it "eviscerate[s] the Equal Protection Clause."
 

Metropolitan Life, supra at 882. The Court stated that, if
 

2
 
 

this proposition were accepted, any discriminatory tax would
 

be upheld if it could be shown that it was reasonably
 

"intended to benefit domestic business." Id.
 

This appears to be the rationale used by the majority in
 

upholding the amendment at issue. The majority does not
 

discuss the evidence presented by plaintiffs or how this
 

evidence is insufficient to overcome the presumption of the
 

amendment's constitutionality. Rather, it concludes that the
 

purpose of the amendment may have been the same as the purpose
 

stated in the underlying retaliatory tax act. That was to
 

promote domestic insurers abroad, a permissible purpose.
 

It seems unlikely that was the Legislature's purpose
 

because, as stated by the majority, the amendment appeared
 

when the Legislature discovered that retaliatory tax revenue
 

was far less than expected. See slip op at p 4. If
 

sufficient evidence had been presented by plaintiffs that the
 

purpose was to cover the shortfall, the legitimate purposes
 

opined by the majority would not necessarily carry the day.
 

Therefore, this Court should state explicitly that the
 

rational basis test, while deferential, does not ensure that
 

all taxation legislation will pass constitutional muster. In
 

this case, plaintiffs presented evidence that employees from
 

the Department of Management and Budget and the Department of
 

Treasury advocated the amendment for a purpose that was
 

impermissible. This evidence does not overcome the
 

presumption of constitutionality because it does not
 

explicitly demonstrate that the "classification is a hostile
 

3
 
and oppressive discrimination." Lehnhausen v Lake Shore Auto
 

Parts Co, 410 US 356, 364; 93 S Ct 1001; 35 L Ed 2d 351
 

(1973). But this is not to say that, in another case, the
 

burden in overcoming the presumption of constitutionality
 

cannot be met.
 

In failing to address this fact, it appears that the
 

majority would uphold any classification, regardless of
 

evidence demonstrating an actual improper purpose for it. The
 

majority's scant treatment of the evidence presented seems to
 

eliminate any possibility of future litigants demonstrating an
 

improper purpose for a challenged classification. It reduces
 

the test for evaluating the constitutionality of a
 

classification to no more than abstract judicial imaginings
 

with little or no apparent basis in fact. Moreover, it
 

elevates a plaintiff's burden of proof to insurmountable
 

heights. Such reasoning is contrary to the United States
 

Supreme Court precedent of Western & Southern Life and
 

Metropolitan Life.
 

4