idently in
the discard, although Justice Black's successive dissents without
opinion may indicate that he still thinks it sound. The multiple tax
test seems to be in an equally bad way, with both Chief Justice Stone
and Justice Rutledge in the grave. The concept of an apportioned tax
still has some vitality however, although just how much is difficult to
assess. Thus in Interstate Oil Pipe Line Co. _v._ Stone,[713] which was
decided in 1949, we find Justice Rutledge, speaking for himself and
Justices Black, Douglas, and Murphy, endorsing the view that Mississippi
was within her rights in imposing on a Delaware corporation, as a
condition of doing a local business, a "privilege" tax equal to two per
cent of its intrastate business even though the exaction amounted to "a
'direct' tax on the 'privilege' of engaging in interstate commerce," an
assertion which was countered by one just as positive, and also endorsed
by four Justices, that no State may "levy privilege, excise or franchise
taxes on a foreign corporation for the privilege of carrying on or the
actual doing of solely interstate business," even though the tax is not
discriminatory and is fairly apportioned between the corporation's
intrastate and interstate business. The tax in controversy was sustained
by the vote of the ninth Justice, who construed it as being levied only
on the privilege of engaging in intrastate commerce, a conclusion which
obviously ignores the question of the tax's actual impact on interstate
commerce, the precise question on which many previous decisions have
turned.[714]

TAXES ON NET INCOME

The leading case under this caption is United States Glue Co. _v._ Oak
Creek[715] where it was held that the State of Wisconsin, in laying a
general income tax upon the gains and profits of a domestic corporation,
was entitled to include in the computation the net income derived from
transportations in interstate commerce. Pointing out the difference
between such a tax and one on gross receipts, the Court said the latter
"affects each transaction in proportion to its magnitude and
irrespective of whether it is profitable or otherwise. Conceivably it
may be sufficient to make the difference between profit and loss, or to
so diminish the profit as to impede or discourage the conduct of the
commerce. A tax upon the net profits has not the same deterrent effect,
since it does not arise at all unless a gain is shown over and above
expenses and losses,