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SCALLOP CORP. v. TULLY

No. 758, Docket 82-7719.

705 F.2d 645 (1983)

SCALLOP CORPORATION, Plaintiff-Appellant, v. James H. TULLY, Jr., Thomas H. Lynch, and Francis Koenig, constituting the New York State Tax Commission; Robert Abrams, Attorney General of the State of New York; and James L. La-Rocca, Commissioner of the New York State Energy Office, Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided April 12, 1983.

Attorney(s) appearing for the Case

Paul M. Dodyk, New York City (Max R. Shulman, L. Donald Prutzman, Jr., Cravath, Swaine & Moore, New York City, of counsel), for plaintiff-appellant.

Edward R. Costikyan, New York City (Simon H. Rifkind, Michael C. Lasky, William P. Farley, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Robert Abrams, Atty. Gen. of the State of N.Y., Peter H. Schiff, Acting Atty. in Chief, Albany, N.Y., of counsel), for defendants-appellees.

Before LUMBARD, MANSFIELD and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Plaintiff-appellant Scallop Corporation (Scallop) commenced this suit seeking a declaration that N.Y. Tax Law § 182 (McKinney Supp.1981 & Supp. June 1982), which imposed a two percent tax on gross receipts of oil companies operating within New York, is preempted by the Emergency Petroleum Allocation Act (EPAA), 15 U.S.C. §§ 751-760h (1976), and thus void under the Supremacy Clause of the United States Constitution art. VI...

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