Vodafone Americas Holdings, Inc. & Subsidiaries v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee - Concurring in Part and Dissenting in Part

I agree with much of the analysis in the majority opinion. Indeed, although in my mind it presents a close question, I can agree with the majority that the taxpayer’s calculation of franchise and excise taxes under the statutory apportionment formula does not “fairly represent the extent of the taxpayer’s business activity” in Tennessee. See Tenn. Code Ann. § 67-4-2014(a) (2015). However, where I must part company with the majority is on the issue of the Commissioner’s compliance with the Tennessee Department of Revenue’s (“Department”) own regulation applicable in this case. See Tenn. Comp. R. & Regs. 1320-06-01-.35(1)(a)(4) (“the variance regulation”).