On June 22, 2022, the Comptroller filed supplemental briefing with the intermediate appellate court, asking for two rulings.² First, the Comptroller seeks a ruling that “cost-based sourcing [does] not, as a matter of law, reflect fair value.” In other words, Texas might be a performance state, but it is not a cost of performance state. Second, the Comptroller argues that Sirius’ allocation methodology (using costs) was flawed because Sirius excluded key costs from its calculation and improperly included other costs that do not fall within the definition of a service (i.e., provide a benefit to the customer or constitute useful work). For example, the Comptroller complained that Sirius “assigned no value to its most valuable asset (its essential FCC licenses), disregarded millions of dollars in performance royalties it paid for content it did not produce or own and excluded hundreds of millions of dollars it spent to subsidize the installation of the equipment necessary to hear Sirius XM’s programming in Texas.”³ The Comptroller also complained that Sirius erroneously included research and development costs in its calculation because while “[r]esearch and development might potentially benefit future customers, [] it is not done for the benefit of the customers who were paying subscription revenues for that period.”⁴

The Comptroller believes that a take nothing judgment is appropriate due to Sirius’ presentation of insufficient evidence regarding fair value allocation. But, if the intermediate appellate court disagrees, the Comptroller wants the case remanded to the trial court to allow the Comptroller the opportunity to present fair value evidence based on the Texas Supreme Court’s guidance regarding the nature of Sirius’ service. The Comptroller presumably seeks remand to the trial court because he offered no evidence to counter that originally offered by Sirius. The Comptroller’s post-remand brief does not set forth a non-cost-based allocation that he deems appropriate. However, the 2021 apportionment rule amendment provides a bit of insight. For example, the rule favors units of service, such as hours worked, rather than costs incurred in Texas versus out of state.⁵ In fact, the rule expressly states that costs of performing a service do not necessarily represent its value.⁶ The rule then provides that, if costs are considered, the costs taken into account should be limited to those directly related to the service and should not include overhead costs.⁷

Despite Sirius’ opposition to any additional briefing, it appears that Sirius Phase II is now underway. Next, we await guidance from the intermediate appellate court about whether a briefing schedule or trial court remand is warranted.

1. 34 Tex. Admin. Code § 3.591(e)(26)(B)
2. See Comptroller’s post-remand brief
3. Id.
4. Id.
5. 34 Tex. Admin. Code § 3.591(e)(26)(B)
6. Id.
7. Id.

Client Alert 2022-169