By Stephen Burroughs and Andrew Appleby

A Vermont Superior Court held that the Commissioner of Taxes unconstitutionally applied the unitary business principle to AIG and its subsidiary, Stowe Mountain Resort. Stowe operates a ski resort, lodging and conference business in Vermont. None of AIG’s other 700 subsidiaries resemble a ski resort, and the Commissioner acknowledged that AIG was not actively involved in Stowe’s ski business. The Commissioner’s argument for unitary combination was based on AIG’s purported active management of Stowe’s financial operations, including the following administrative level findings: loans by AIG not made at arm’s length, management of expansion efforts at the resort by AIG, AIG’s assistance with financial and asset management expertise and various centralized corporate services, and AIG’s provision of marketing support through resort discounts offered to AIG employees. The Commissioner ultimately argued that Stowe was dependent upon AIG loans for its financial viability, and a separate accounting would not capture the true financial picture of AIG’s involvement with Stowe’s operations. But the Commissioner’s findings lacked one critical ingredient—adequate support from the record. The court held that the Commissioner’s findings “far outrun the evidence, which unambiguously shows that Stowe was a discrete business that did not send taxable value out of state in any appreciable way.” AIG offered uncontradicted testimony from several key AIG executives and independent Stowe consultants, whose testimony combined to describe a discrete business enterprise. Accordingly, the court held the Commissioner’s finding of unity at the administrative level was outside the constitutional boundaries of the unitary business principal. This decision represents an important taxpayer victory, as it is one of the first court decisions to apply the unitary business principle to Vermont’s combined reporting statutes. AIG Insurance Mgmt. Services, Inc. v. Vermont Dept. of Taxes, No. 589-9-13 (Vt. Sup. Ct., July 30, 2014).