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Kostelanetz Files Amicus Brief Asking SCOTUS To Review Pivotal Commerce Clause Tax Case

Kostelanetz LLP has filed an amicus brief on behalf of the American College of Tax Counsel (ACTC) in Diane Zilka v. Tax Review Board City of Philadelphia (No.23-914), a case involving Philadelphia’s wage tax where the petitioner is seeking a writ of certiorari from the U.S. Supreme Court. Philadelphia’s wage tax offers a credit for taxes paid to other municipalities but not for taxes paid to other states, and the case turns on the question of whether the tax violates the dormant Commerce Clause of the United States Constitution.

The ACTC filed the amicus brief in support of Ms. Zilka’s petition in order “to resolve the inconsistent application of the dormant Commerce Clause to local taxes and ensure that discriminatory state taxes at the local level are not a significant impediment to interstate commerce,” according to the brief.

The ACTC amicus brief was prepared by Kostelanetz attorneys Andrew Weiner, counsel of record, and Michael Waalkes, along with Joan Arnold and Randy Varner of Troutman Pepper Hamilton Sanders LLP. Troutman Pepper served as counsel of record for ACTC in the proceedings before the Pennsylvania Supreme Court.

“This case is important to our national economy and to establish how the dormant Commerce Clause applies to literally thousands of local taxing jurisdictions,” stated Andrew Weiner.

As the brief notes, the dormant Commerce Clause generally requires that states offer their residents a credit for taxes paid out of state to avoid double taxation that improperly discriminates against interstate commerce. In Zilka, the Pennsylvania Supreme Court considered local taxes separately from state taxes and, therefore, concluded that Philadelphia’s wage tax is constitutional even though it allows a credit only for taxes paid to other municipalities. The ACTC argues in its brief that the U.S. Supreme Court should grant certiorari and overturn the Pennsylvania Supreme Court’s decision because it violates basic principles behind the dormant Commerce Clause and established case law.

Kostelanetz is proud to represent the American College of Tax Counsel, and five of our attorneys — Megan L. Brackney, Caroline D. Ciraolo, Jay R. Nanavati, Bryan C. Skarlatos, and Andrew Weiner — are fellows of the College, with Caroline Ciraolo having served as the ACTC’s president for the 2021-2022 term. Previously, Kostelanetz filed appellate and Supreme Court amicus briefs on behalf of the ACTC in two major cases regarding Reports of Foreign Bank Accounts (FBARs) — the Ninth Circuit Court of Appeals case United States v. Jane Boyd and the U.S. Supreme Court case Alexandru Bittner v. United States.

The American College of Tax Counsel describes itself as a nonprofit association of tax lawyers in private practice, law school teaching positions, and government, who are recognized for their excellence in tax practice and their substantial contributions and commitment to the profession. One of the ACTC’s chief stated purposes is to provide a mechanism for input by tax attorneys into the development of U.S. tax laws and policy. The ACTC can be found online at