In January 2011, the North Carolina Business Court decided Delhaize America, Inc. v. Lay. Delhaize is a forced combination case under the former N.C. Gen. Stat. § 105-130.6 mentioned above. In Delhaize, the Business Court found that the Secretary of Revenue’s assessment of additional corporate income tax, based on the requirement that the taxpayer and certain affiliates file combined corporate income tax returns, was lawful. The Business Court found that the assessment of penalties, however, was unconstitutional and unauthorized by statute.
Both parties appealed this decision to the North Carolina Court of Appeals. Delhaize America, Inc. has also filed a petition for discretionary review by the North Carolina Supreme Court. The petition requests that the Supreme Court review the Business Court’s decision prior to determination by the Court of Appeals. The Secretary of Revenue opposes the petition for discretionary review. The North Carolina Supreme Court has not yet acted on this petition.