No. 94-1239

FULTON CORPORATION, PETITIONER v. JANICE H. FAULKNER, SECRETARY OF REVENUE OF NORTH CAROLINA

on writ of certiorari to the supreme court of north carolina

[February 21, 1996]

Chief Justice Rehnquist , concurring.

Darnell v. Indiana, 226 U.S. 390 (1912), required that taxation of interstate transactions be "consistent with substantial equality notwithstanding the technical differences." Id., at 398. Whether or not North Carolina's intangibles tax would satisfy Darnell's "substantial equality" requirement, I agree that the tax is not consistent with this Court's more recent requirement that there be "substantial equivalence" between an in state taxable event and the interstate event on which a State levies a compensatory tax. Ante, at 13. I have expressed in dissent my belief that the "substantial equivalence" test deviates from the principle articulated in earlier cases that " `equality for the purposes of competition and the flow of commerce' " should be " `measured in dollars and cents, not legal abstractions,' " Armco Inc. v. Hardesty, 467 U.S. 638, 647 (1984) (quoting Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 70 (1963)), and it might be argued accordingly that Darnell is more "realistic," 467 U. S., at 648. However, my view has not prevailed, and Darnell simply cannot be reconciled with the compensatory tax decisions cited in the Court's opinion, ante, at 13. I therefore join the opinion of the Court.