Filed 1/3/00

CERTIFIED FOR PUBLICATION

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

THIRD APPELLATE DISTRICT

 

(Sacramento)

 

 

 

HOECHST CELANESE CORPORATION,

 

Plaintiff and Appellant,

 

v.

 

FRANCHISE TAX BOARD,

 

Defendant and Respondent.

 

 

 

C030702

 

(Super.Ct.No. 96AS01954)

 

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of Sacramento County, William M. Gallagher, Judge. Reversed.

 

Morrison & Foerster, Eric J. Coffill and Lisa R. Brenner, for Plaintiff and Appellant.

 

Bill Lockyer, Attorney General, Lawrence K. Keethe, Supervising Deputy Attorney General, and George C. Spanos, Deputy Attorney General, for Defendant and Respondent.

 

Paull Mines and Anne E. Miller for Multistate Tax Commission, as Amici Cintegral" with "essential" for purposes of determining what constitutes a unitary business (Superior Oil Co. v. Franchise Tax Board (1963) 60 Cal.2d 406, 413-414), the Polaroid analysis properly highlights the closeness of the relationship between the asset and the corporation’s business operations required under the functional test for business income.

5. On page 21, at the end of the first full paragraph as modified, a new paragraph is inserted which reads:

The FTB cites the SBE decision in Kroehler in support of its argument the Celanese pension reversion is taxable as business income under the functional test. However, Kroehler’s factual analysis is brief and conclusory, and the SBE’s limited findings distinguish it from the case before us. In Kroehler, the taxpayer acquired all the assets of another furniture company, including interest in a pre-ERISA pension plan, to further its business of manufacturing and selling furniture. (Kroehler, supra, Cal. Tax Reports, ¶ 205-649, p. 14,897-123.) It maintained the pension plan to retain and attract employees to perform the required labor. The taxpayer liquidated the pension plan in the course of terminating the entire business operation of its Kentucky subsidiary. The taxpayer, as residuary beneficiary of the pension plan, received the fund surplus as a rebate. (Ibid.)

6. On page 22, line 11 of the first full paragraph, the phrase "but for the Plan beneficiaries" is deleted so the sentence reads:

Celanese did not hold title to the assets, and in the regular course of its business, the acquisition, management, and disposition of the trust assets did not generate income for Celanese’s business.

There is no change in judgment.

Respondent’s petition for rehearing is denied.

FOR THE COURT:

SIMS, Acting P.J.

CALLAHAN, J.

KOLKEY, J.