Amerada Hess Corp. v. Fong

20040378 Amerada Hess Corporation;
Tioga Gas Plant, Inc.; Solar
Gas, Inc.; and AH 1980 Program,
Inc., Appellants
v.
State of North Dakota, by and
through its Tax Commissioner,
Cory Fong, Appellee

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Donald L. Jorgensen
Nature of Action: Tax Related
Counsel:
Appellant: Fleck, Mather & Strutz
Appellant: Lawyer not licensed in N.D.
Appellee: Robert W. Wirtz , Spec. Asst. Atty. Gen.
Appellee: Donnita Ann Wald , Spec. Asst. Atty. Gen.
Term: 04/2005   Argument: 04/18/2005  9:30am
ND cite: 2005 ND 155
NW cite: 704 N.W.2d 8

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Whether the Tax Commissioner incorrectly concluded that an amount (commonly referred to as a " 78 dividend" or  78 gross up") which is treated under  78 of the Internal Revenue Code as "a dividend received by [a] domestic corporation from [a] foreign corporation" may be treated as a dividend and included in North Dakota apportionable income but may not be treated as a dividend and partially excluded under the provisions of Section 57-38.4-02(2) of the North Dakota Century Code.
2. Whether the Tax Commissioner incorrectly concluded that a taxpayer which has made a water's edge election must include both the income of an 80/20 subsidiary corporation and dividends distributed from that income in its North Dakota apportionable income notwithstanding the fact that such inclusion results in double taxation.

Appellee's Statement of the Issues:
1. Whether Internal Revenue Code  78 "gross-up" required for federal income tax purposes must be included in the Appellants' ("AHC") taxable income.
2. Whether the dividends from AHOC Abu Dhabi ("AHOC"), an 80/20 corporation, must be included in AHC's taxable income.

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Docket entries:
112/29/2004 NOTICE OF APPEAL: 12/27/2004
201/07/2005 MOTION for Admission Pro Hac Vice from John W. Morrison & Affidavit of Joseph M. Aspray
301/07/2005 ACTION BY CLERK (Mot/Pro Hac Vice of Joseph M. Aspray). Granted
401/24/2005 RECORD ON APPEAL & Record from Tax Commissioner (2 vols.)
502/04/2005 MOT. EXT/TIME APPELLANT BRIEF; AFFIDAVIT OF JOHN W. MORRISON
602/04/2005 ACTION BY CLERK (MAT). Granted: 02/18/2005
702/16/2005 APPELLANT BRIEF
802/16/2005 APPELLANT APPENDIX
902/16/2005 DISK - atb
1002/22/2005 8 cc of administrative docket sheets
1103/17/2005 APPELLEE BRIEF
1203/17/2005 DISK - AEB
1304/04/2005 REPLY BRIEF
1404/04/2005 DISK - RYB
1504/18/2005 APPEARANCES: John W. Morrison, Joseph M. Aspray; Robert W. Wirtz, Donnita Ann Wald
1604/18/2005 ARGUED: Morrison; Wirtz (Vol. Z; Page 106)
1704/18/2005 ORAL ARGUMENT WEBCAST
1808/31/2005 DISPOSITION: AFFIRMED
1908/31/2005 SPLIT OPINION: Maring, Mary Muehlen
2008/31/2005 Concurring Specially: VandeWalle, Gerald W.: CONCUR
2108/31/2005 Costs on appeal taxed in favor of appellee
2209/01/2005 Judgment Mailed to Parties
2309/22/2005 MANDATE
2409/27/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2506/18/2012 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 10/22/2014