## In the 

# United States Court of Appeals
For the Seventh Circuit

____________
No. 02-1632

I N RE : E NVIRODYNE I NDUSTRIES
, I NC
., et al

., Debtors-Appellees.

A PPEAL OF : I LLINOIS D EPARTMENT OF R EVENUE

.

____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 01 C 7861— Suzanne B. Conlon

, Judge

.

____________ A RGUED O CTOBER 31, 2003—D ECIDED J ANUARY 6, 2004

____________

Before P OSNER , E ASTERBROOK
, and E VANS
, Circuit Judges

. P OSNER
, Circuit Judge . The Illinois income tax statute requires firms that constitute a “unitary business group” to file a consolidated (ca lled a “combined”) return. 35 ILCS 5/502(e); Ill. Admin. Co de tit. 86, § 100.5200. The quoted term signifies “a group of persons related through common ownership whose business activities are integrated with, dependent upon and contribute to each other.” 35 ILCS 5/1501(a)(27). They must be “functionally integrated through the exercise of strong centralized management(where, for example, authority over such matters as purchasing, financing, tax compliance, product line, personnel, marketing and capital investmentis not left to each member).” Id

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Why does Illinois require unitary business groups so defined to file consolidated returns? Presumably to reach income generated in other stat es by businesses that operate in Illinois as well. The federa l Constitution has been interpreted to forbid a state to tax income generated wholly outside the state. Allied-Signal, Inc. v. Director, Division of Taxation , 504 U.S. 768, 777-78 (1992); Container Corp. of America v. Franchise Tax Bd. , 463 U.S. 159, 164 (1983). But the income of a genuinely integrated multistate enterprise is not generated entirely in one state, and so its income must be apportioned for tax purposes among the states in which the enterprise operates. Id . at 169; Allied-Signal, Inc. v. Director, Division of Taxation

, supra, 504 U.S. at 772. If a firm owns a plant in Illinois that delivers its output of beer mugs to the firm’s distribution facilities in Wisconsin for sale to residents of Wisconsin, is the income generated from those sales earned in Wisconsin or in Illinois? It is earned in both, and so must be apportioned in a way that will avoid, so far as possible, multiple taxation of the firm. But suppose the firm is a holding company one of whose subsidiaries owns a plant in Illinois that sells toothbrushes to Chicagoans and the other a dance studio in Wisconsin that sells dancing lessons to Wisconsinites, and the subsidiaries are operated as more or less independent enterprises. It would be unreasonable for Illinois to try to tax the income of the dance studio but reasonable for it to tax some of the income of the beer-mug sales in our first hypothetical, for that is a case of a unitary business grou p. The constitutional test is that “the out-of-state activities of the purported ‘unitary business’ [must] be related in some concrete way to the instate activities. The functional meaning of this requirement is that there be some sharing or exchange of value not capable of precise identification or measurement—beyond the mere flow of funds arising out of a passive investment or a distinct business oper ation—which renders formulaNo. 02-1632 3

apportionment a reasonable method of taxation. . . . [We have] recognized that the un itary business principle could apply, not only to vertically integrated enterprises, but also to a series of similar enterp rises operating separately in various jurisdictions but linked by common managerial or operational resources that produced economies of scale and transfers of value.” Container Corp. of America v. Franchise Tax Bd.

, supra, 463 U.S. at 166. Envirodyne owns several subsidiaries that make food packaging materials and several others (including Wisconsin Steel Company) that make steel; for simplicity,we’ll pretend that there is just one food-packaging subsidiary and one steel subsidiary, and we’ll also ignore other subsidiaries of Envirodyne. For the tax years in question, Envirodyne filed consolidated Illinois income tax returns so that it could offset losses in curred by the steel subsidiary against income of the food-packaging subsidiary. The losses were incurred outside Illinois, an d so are allocable to Illinoisonly if the subsidiaries are parts of the same unitary business group. Envirodyne and the food-packaging subsidiary are conceded to constitute a unitary business enterprise entitled to file a consolidated Illinois income tax return. The record contains little information on the scope of Envirodyne’s food-packaging operations. It does indicate that some of these operations are in Illinois and some in other states, including California, Massachusetts, and Ohio, and also overseas, but it does not indicate what percentage of Envirodyne’s total food-p ackaging earnings are generated in Illinois.

The Illinois Department of Revenue filed a claim in bankruptcy court for the additional taxes that Envirodyne owes if, as the Department concluded after an audit, Envirodyne wasn’t authorized to include the losses of the steel subsid-4 No. 02-1632

iary in its consolidated returns. The bankruptcy judge, seconded by the district judge, ruled in favor of Envirodyne, which had the burden of proving its entitlement to file consolidated returns, because that would have been its burden in an Illinois state court. Raleigh v. Illinois Dep’t of Revenue , 530 U.S. 15, 20-22 (2000); see 35 ILCS 5/904(a); Ill. Admin. Code tit. 86, § 100.9300(a); PPG Industries, Inc. v. Department of Revenue , 765 N.E.2d 34, 48-49 (Ill. App. 2002). The facts are stipulated; the issu e is their legal significance. Envirodyne is actively invo lved in the management of both subsidiaries; both may therefore be said to be under common management and each, we may assume, is functionally integrated with Envirodyne. That, Envirodyne argues (and the district court agreed, which is why the Illinois Department of Revenue is the appellant), is all that’s required to create a unitary business group. That there is no integration between the food-packaging subsidiary and the steel subsidiary—no common pension or welfare plans, no common employee handbook, no joint advertising—the two companies constituting spokes with a hub at Envirodyne but no rim, except, of course, that Envirodyne files consolidated tax returns on behalf of all its subsidiaries and therefore must provide the legal and accounting services required for the preparation of the returns—all this, Envirodyne’s argues, is irrelevant.

The statute, however, says that the members of a unitary business group must depend on and contribute to each other

. It cannot be enough that each depends on and contributes to its parent. The concept of the unitary business group, to be a constitutional basis for taxing income earned out of state, must identify a genuine multistate enterprise—an enterprise that generates income which can’t confidently beascribed to a particular state in which the enterprise operates. If a holding company owns two unrelated companiesNo. 02-1632 5

that operate in two different states, the state in which one of them operates cannot tax the income of the other just because the two are affiliates and each is under the control of their common parent. Allied-Signal, Inc. v. Director, Division of Taxation

, supra, 504 U.S. at 772-73; F.W. Woolworth Co. v. Taxation & Revenue Dep’t, 458 U.S. 354, 362 (1982); Mobil Oil Corp. v. Commissioner of Taxes , 445 U.S. 425, 439-40 (1980). By the same token—since what is sauce for the goose is sauce for the gander—one of the affiliates can’t use the other’s losses to reduce its own tax liability. If Envirodyne owned a money-losing rickshaw operator in Mandalay, it could not reduce the income from its food-packaging operations in Illinois by the lo sses of its rickshaw operation. Illinois may be shortsighted in urging a construction of “unitary business group” that requires genuine integration, for that will make it harder for the state to reach out and tax income of affiliates of Illinois firms in other states. But that is a tactical decision for the st ate to make; it has no bearing on our interpretation and application of the statute. Both parties point to judici al language that supports their respective interpretations of the meaning of unitary business enterprise. Compare Citizens Utilities Co. v. Department of Revenue , 488 N.E.2d 984, 990-92 (Ill. 1986); Hormel Foods Corp. v. Zehnder , 738 N.E.2d 145, 149-53 (Ill. App. 2000); Borden, Inc. v. Illinois Dep’t of Revenue , 692 N.E.2d 1335, 1337-41 (Ill. App. 1998), and A.B. Dick Co. v. McGraw

, 678 N.E.2d 1100, 1104-08 (Ill. App. 1997), cited by Envirodyne, with Louis Dreyfus Corp. v. Huddleston , 933 S.W.2d 460, 469-71 (Tenn. App. 1996); State ex rel. Arizona Dep’t of Revenue v. Talley Industries, Inc. , 893 P.2d 17, 25-26 (Ariz. App. 1994); Department of Revenue v. Terrace Tower U.S.A., Inc. , 15 Ore. Tax 168, 173 (Tax Ct. 2000), and Central National-Gottesman, Inc. v. Director, Division of Taxation , 146 No. 02-1632
N.J. Tax 545, 556-60 (Tax Ct. 1995), cited by the Illinois Department of Revenue. The Illinois cases, all cited by Envirodyne, bear more directly on the meaning of the Illinois statute, so we shall focus on them. Envirodyne points out that they require neither any actual transfer of product (vertical integration) between an affiliate with outof-state income that Illinois wants to tax and one with instate income for unitary status to be achieved, nor that the affiliate having out-of-state income be integrated with all the affiliates that have in-state income. But there has to be some integration beyond the bare minimum of central-officefunctions shared by virtue of the affiliates’ having a common parent that has decided to file consolidated tax returns and, as a corollary of that de cision, to perform the legal and accounting services required for the preparation of those returns. In the only decision by the Supreme Court of Illinois that Envirodyne cites on the meaning of unitary business group, we read:The record shows the taxpayer and all other subsidiaries in the group to be wholly owned subsidiaries of the parent, and—with few exceptions—the parent and all its subsidiaries share th e same officers as well as interlocking boards of directors. Although day-to-day management of the operating subsidiaries is controlledby local managers, the parent’s headquarters in Connecticut . . . must specific ally approve disbursements made by local managers over certain amounts. In the taxpayer’s case, specific a pproval is required for all purchases exceeding $500. Headquarters also reviews major engineering projects an d provides legal assistance in interpretation of State and Federal laws. Complex accounting functions, including preparation of the taxpayer’s income tax returns, are also provided by theNo. 02-1632 7

headquarters. All of these services are performed for the taxpayer, and the other subsidiaries, at cost: the parent charges only to recover labor and overhead costs associated with those services provided. Revenues received by the taxpayer are deposited in a local bank and can be withdrawn by the parent at any time. Whenrevenues are withdrawn by the parent, a debit is entered on the taxpayer’s intercompany account. That account, carried as a liability by all the subsidiaries with a corresponding account on the parent’s books, is the means by which the parent skims earnings from one subsidiary for investment in another. Such investments are made as interest-free loans routed through the intercompany account. Citizens Utilities Co. v. Department of Revenue

, supra, 488 N.E.2d at 990-91. At first glance it might seem that all that was involved in Citizens Utilities was parental control ofeach sub—a hub and spokes with no rim. But the appearance is misleading. All the subsidiaries were engaged in the same business, that of supplyi ng water and water-treatment services, and, primarily through the capital-allocation method described at the end of the quoted passage, they were being managed essentially as a single enterprise. The functional integration was as clear or clearer in the three decisions by the Illinois Appellate Court that Envirodyne cites, as well as in the only other pertinent Illinois decisions that we have found. Caterpillar Tractor Co. v. Lenckos , 417 N.E.2d 1343, 1351 (Ill. 1981); PPG Industries, Inc. v. Department of Revenue

, supra, 765 N.E.2d at 40-42. In the Caterpillar case, the Supreme Court of Illinois said that the term “unitary business group,” when applied to a corporation which has subsidiaries or other associated corporations in other States or countries, is used to8 No. 02-1632

describe a group of function ally integrated corporate units which are so interrelated and interdependent thatit becomes relatively impossible for one State to determine the net income generated by a particular corporation’s activities within the State and therefore allocableto that State for purposes of taxation. A classic illustration of a unitary business is the Caterpillar Tractor Company. . . . Despite the magnitude and diversity of [its] multistate and multinational operations, there is anoverriding corporate design to maintain strict uniformity in areas such as product design, control maintenance, accounting procedur es, research and development and even a uniform standard or code of the conduct for its personnel throughout the world.

417 N.E.2d at 1351. There is nothing comparable here. Envirodyne cites a regulation of the Illinois Department of Revenue which says that it’s enough to create a unitarybusiness group that although the “subsidiaries were relatively autonomous in their day-to-day operations,” and “there was no significant flow of goods between any of thecorporations,” the parent provided “centralized warehousing, [financing, inventory,] and accounting functions for itself and its subsidiaries.” Ill. Admin. Code tit. 86,§ 100.3010(c)(4)(D). This makes sense because if the subsidiaries were sharing all these functions, the income of each subsidiary would be determined to a significant effect by activities taking place in another state, just as in the Citizens Utilities case. Suppose that one subsidiary sells widgets in Illinois and another in Wisconsin, but all the widgets are warehoused in Illinois, the billing and all other back-office functions are performed in Illin ois, and so forth; then the income from the sale of the widgets in Wisconsin would be generated to a significant extent by activities in Illinois, andNo. 02-1632 9

Illinois would therefore have a claim to tax part of that income. It would be providing pu blic services to the Illinois branch of the enterprise (police and fire protection for the warehouse, for example) and in doing so helping the Wisconsin branch to obtain revenues. The goal of apportioning income for tax purposes is, so far as possible, to match income to the state’s provision of services that help to produce or safeguard that income. Envirodyne is left to argue that since it participated in the management of the steel company, it should be deemed integrated with it. If true, this is irrelevant. It is trying to offset the steel company’s losses in Wisconsin (and otherstates other than Illinois) not against income by the foodpackaging subsidiary in Wisconsin, but rather against the income of that subsidiary that is taxable in Illinois, and that subsidiary has no connection with the steel company beyond what is implicit in Envirodyne’s filing consolidatedreturns for all its subsidiaries. No protective or other services rendered by Illinois to the food-packaging subsidiary contributed to the income, or caused the losses, of the steelcompany in Wisconsin. There would be no basis for Illinois’s trying to tax any of the steel company’s income, and there is likewise no basis for Envirodyne’s trying to reap an Illinois tax benefit from any of those losses.

We will not pretend that the co urse of decision in Illinois has run entirely true. Particul arly troublesome is language in two of decisions of the I llinois Appellate Court cited by Envirodyne that, in the teeth of the statute, equates common management to functional integration, A.B. Dick Co. v. McGraw

, supra , 678 N.E.2d at 1102; Borden, Inc. v. Illinois Dep’t of Revenue

, supra, 692 N.E.2d at 1340, which if takenliterally—since wholly owned subsidiaries of the same parent corporation are normally considered under common10 No. 02-1632

management—would imply uncons titutionally that all such affiliated groups were unitary business enterprises. But our decision is supported by the purpose and the language of the statute, and neither party has suggested that we certify the question to the Supreme Court of Illinois, a referral that would in any event be awkward because of the fact-specific nature of the question. Diginet, Inc. v. Western Union ATS, Inc. , 958 F.2d 1388, 1395 (7th Cir. 1992); Konradi v. United States , 919 F.2d 1207, 1213 (7th Cir. 1990); see also 17A Charles Alan Wright, Arth ur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4248, pp. 173-74 (2d ed. 1988).

One loose end remains to be noted. We know that some of Envirodyne’s food-packaging operations are in Illinois and others outside, but we do not know how much of the earnings from those operations Envirodyne allocated to Illinois. To the extent that su ch allocation is discretionary because of the inherent uncertainties involved in the allocation of joint and common costs, Envirodyne would have had an incentive to allocate as much of those earnings as possible to Illinois, up to the amount of the out-of-state steel losses, if it thought it could offset the latter against the former. With that option de nied, Envirodyne may wish to consider filing an amended return “deconsolidating” the food-packaging operations in order to be able to file a consolidated return in another state, which might be more advantageous given our ruling that the Illinois Department of Revenue was entitled to deny the offset. Whether Envirodyne can do this is a question of Illinois law on which we express no view; it can be considered on remand. The judgment of the district court is reversed and the case remanded for further proceedings consistent with this opinion.

R EVERSED AND R EMANDED

.No. 02-1632 11

A true Copy:

Teste:

_____________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-6-04