Court of Civil Appeals Rejects Constitutional Challenge to Add-Back Tax Statute

The Court  of Civil Appeals’ opinion in Surtees v. VFJ Ventures, Inc., No. 2060478 (Ala. Civ. App. Feb. 8, 2008), contains an interesting, lengthy discussion of Alabama’s add-back statute.  After it rejected the reasons that appellee VFJ offered to support the trial court’s finding that the corporate income tax assessment that the Alabama Department of Revenue made against VFJ pursuant to Alabama’s add-back statute was in error, the Court of Civil Appeals reviewed, and ultimately refused, VFJ’s constitutional challenge to the statute.  In doing so, the Court of Civil Appeals applied the following standard of review: “we ‘approach the question [of the constitutionality of a statute] with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of government.’. . . Moreover, where the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction [that] would uphold it.’ . . . We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits.” Id. at 61-62 (internal citations omitted).

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