Last month, JetBlue filed a Motion for Summary Judgment relating to Court IV and V of its Complaint. Count IV and V are the internal and external consistency tests of fair apportionment under the commerce clause. While the Department’s Motion to Dismiss relied heavily on the notion that JetBlue’s argument was both a facial and as-applied fair apportionment challenge, the Motion for Summary Judgment made clear these challenges were purely facial. Prior to the November 5, 2024, Hearing, the Judge ordered JetBlue to refile its Motion for Summary Judgment as a Motion for Judgment on the Pleadings.
On November 4, 2024, the Florida Department of Revenue filed it’s Response to Plaintiff’s Motion for Judgment on the Pleadings arguing that (1) Florida’s apportionment formula does not tax 100% of JetBlue’s income; (2) Florida’s revenue miles do not include flyover miles; and (3) JetBlue does not have standing.
The underlying Florida corporate income tax apportionment formula at issue in this case consists of a single-factor calculation of revenue miles within the “Florida Box.” While it is common for special industries like airlines to have unique apportionment formulas, Florida uniquely includes revenue miles which far exceed the geographical boundaries of the state, including parts of Alabama and a large portion of the Gulf of Mexico.
On September 26, JetBlue responded to the Motion to Dismiss with a Motion for Summary Judgement. Subsequently, on October 17, JetBlue filed its Response to Motion to Dismiss. After JetBlue refiled its MFSJ as a Motion for Judgment on the Pleadings, the Florida Department of Revenue filed its Response in Opposition to Plaintiff’s Motion for Judgment on the Pleadings on November 4, 2024. The Hearing was held on the Motion to Dismiss on November 5, 2024, and an Order is expected in December.
Jeanette Moffa, Esq.
Phone: (954) 800-4138
Email: [email protected]
Jeanette Moffa is a Partner in the Fort Lauderdale office of Moffa, Sutton, & Donnini. She focuses her practice in Florida state and local tax. Jeanette provides SALT planning and consulting as part of her practice, addressing issues such as nexus and taxability, including exemptions, inclusions, and exclusions of transactions from the tax base. In addition, she handles tax controversy, working with state and local agencies in resolution of assessment and refund cases. She also litigates state and local tax and administrative law issues.
