In Northwest Energetics Services LLC v. FTB, SF Super. Ct. #CGC-05-437721, a San Francisco trial court decision involving a Washington organized LLC that had qualified to do business in California, but never actually had any business activities in California, the court rendered a notice of intended decision that the failure to apportion the LLC fee renders the fee unconstitutional under the US Constitution’s due process and commerce clauses because it is an unapportioned tax on income.
Though the state will be able to appeal the decision, the California Franchise Tax Board has released a form of notice used to file protective claims for LLC fee refunds in order for those affected by the case decision to file refund claims to protect against the statute of limitations while the case is pending appeal.
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