The taxpayer in Steiner v. Utah State Tax Commission, a 2019 decision by the Utah Supreme Court, has petitioned for certiorari to the U.S. Supreme Court. This article argues that the Supreme Court should grant certiorari (1) to confirm that the internal consistency test applies to international income, (2) to correct the errors of the Utah court, and (3) to communicate to the state courts — at least two of which have ignored the Court’s 2015 decision in Comptroller of the Treasury v. Wynne — that Wynne is now the standard for evaluating state tax discrimination cases under the dormant commerce clause and that Wynne calls for application of the internal consistency test.
This article further argues that the Utah Supreme Court did not apply the dormant foreign commerce clause correctly in Steiner because it did not apply the internal consistency test. This may reflect a genuine belief on the Utah Supreme Court’s part that the internal consistency test does not apply to foreign commerce. It also may be due to the Utah court’s evident hostility to dormant commerce clause analysis generally. Either explanation for the errors in the Utah court’s decisions would be reason enough for the Supreme Court to grant certiorari in the case.