Atchison, Topeka and Santa Fe Railway Company (AT&SF) was a railroad company operating in New Mexico in the 1970’s. In 1974, AT&SF entered into an agreement with the Department pursuant to current section 7-4-20 of New Mexico’s version of the Uniform Division of Income for Tax Purposes Act (UDITPA). The agreement detailed the methods to be used by AT&SF in allocating and apportioning certain items of income on its New Mexico corporate income tax returns. In December 1996, AT&SF merged into another railroad company, Burlington Northern (BN), a subsidiary of Burlington Northern Santa Fe Corporation (BNSFC). Following the merger, AT&SF ceased to exist as a separate entity. BN, the surviving corporation, changed its name to Burlington Northern and Santa Fe Railway Company (BNSF Rwy) and continued the railroad operations of the two merged corporations. The merger created a corporation that was significantly increased in size, both in terms of track mileage and revenues.
For tax year 1996, the Taxpayer (BNSFC) applied the 1974 agreement between AT&SF and the Department to apportion and allocate the income of AT&SF, which was reporting as a separate, identifiable entity on BNSFC’s combined return. For tax year 1997, AT&SF had ceased to exist as a separate, identifiable entity, but BNSFC continued to appy the 1974 agreement to apportion and allocate the income of BNSF Rwy, the surviving corporation of the merger of AT&SF and BN. In 1998, the Department conducted a corporate income tax audit of BNSFC and disallowed application of the 1974 agreement to the income of BNSF Rwy, resulting in the assessment of additional tax. BNSFC protested the assessment, arguing that the 1996 Plan of Merger provided that BNSF Rwy would succeed to “all the rights, privileges, powers and franchises” of AT&SF, which included the 1974 agreement. Held: 1) The special allocation and apportionment method created by the 1974 agreement was personal to AT&SF and was not a right that AT&SF could sell or assign to a third party; 2) Although BNSF Rwy succeeded to AT&SF’s rights under the 1974 Agreement by operation of law, BNSFC’s application of the 1974 agreement to BNSF Rwy’s total income expanded the scope of the agreement and created an increased risk to the state’s revenues; and 3) Once AT&SF ceased to have any identifiable income to which the 1974 agreement could be applied, and in the absence of any evidence that applying the agreement to the combined income of AT&SF and BN would result in a fair allocation and apportionment of income to New Mexico, the object of the agreement could no longer be met and the agreement was effectively terminated. Protest denied.