The Delaware Superior Court granted summary judgment in favor of the taxpayer finding that the Division of Revenue’s limitation on net operating losses violated the state constitution’s uniformity clause and that the Division improperly limited the amount of separate company NOL the taxpayer could claim on its Delaware income tax return to the amount of its federal consolidated NOL deduction. While the taxpayer in this matter filed a consolidated federal income tax return, Delaware requires separate company income tax returns and thus calculates net operating losses on a separate company basis. The Delaware Division of Revenue limited the amount of the taxpayer’s separate company NOL carryforward deduction to the amount of the taxpayer’s consolidated NOL deduction based on the Division’s policy to require a taxpayer to compute its NOL on a separate company basis under the Internal Revenue Code and then to limit that separate company NOL deduction to the consolidated NOL deduction on the federal consolidated group. The court found that the Division’s policy was consistent with Delaware’s income tax statute and that the policy did not discriminate against interstate commerce in violation of the U.S. Constitution. However, it ruled that the Department’s policy violated the state constitution’s uniformity clause by creating two classes of taxpayers and by treating taxpayers that file a federal consolidated return differently than those that do not. The Division therefore improperly limited the amount of NOL the taxpayer could claim.

Verisign, Inc. v. Dir. Of Revenue, Del Super. Ct., No. N19C-08-093 (12/17/2020)