Manufacturer Selling Out of the City Tax

The court in General Motors Corp. v. City of Los Angeles (1995), 35 Cal. App. 4th 1736, held that a tax scheme under which a manufacturer selling in the City pays a selling tax if it is located out of the City, but not if the manufacturer is located in the City, unconstitutionally discriminates. Los Angeles Municipal Code section 21.166 thus "on its face" discriminated "per se" in favor of local manufacturers and against manufacturers from out of the City, and violated state and federal constitutional proscriptions against restraint on the flow of commerce. (35 Cal. App. 4th at pp. 1743-1749, 1752.) The court analyzed the United States Supreme Court's opinions in Tyler Pipe Industries v. Dept. of Revenue (1987) 483 U.S. 232 [107 S. Ct. 2810, 97 L. Ed. 2d 199], and Armco, Inc. v. Hardesty (1984) 467 U.S. 638 [104 S. Ct. 2620, 81 L. Ed. 2d 540], and concluded the City cannot exempt some sellers from a tax and impose the tax on other sellers. As the court explained in G.M. v. Los Angeles, supra, 35 Cal. App. 4th at pages 1748-1749: "There are no relevant differences among the taxing schemes of West Virginia [discussed in Armco], Washington [discussed in Tyler], and the City of Los Angeles. In all three there is a separate tax on manufacturing and a separate tax on selling with the local manufacturer functionally or actually exempted from the selling tax. As a consequence, notwithstanding any differential in the actual rate or amount of tax, they are discriminatory on their face in favor of in-city manufacturers. This is so even though section 21.166 [of the Los Angeles Municipal Code] provides dual categories subject to taxation, one referring to 'manufacturing and selling' and the other referring to 'selling' only. The labels applied to different taxpayers are not determinative if the practical effect of the taxing scheme is to impose a heavier tax burden on out-of-city businesses that compete within the city market than it imposes on residents that also engage in commerce within the city.