Earlier today the FTB filed a Petition for Rehearing of the Appellate Court's July 24, 2012 Gillette decision.
The FTB asserts that the Court's decision does not determine whether CRTC 25128 permits taxpayers to elect to use the MTC Compact or whether amended CRTC 25128 is unconstitutional and therefore invalid because it prohibits such an election. The petition contends that "[w]ithout further explanation of the Court's reasoning, it is not clear whether the Court has determined that the 1993 amendment to section 25128 is being declared unconstitutional or whether the court has reconciled the provisions of amended section 25128 with those of section 38006 . . . [b]ecause the decision does not explicitly hold that amended section 25128 is unconstitutional, the statute remains on the books and must be enforced by the FTB . . . "