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But the State's offer to restore petitioner only to the same absolute tax position it would have enjoyed if taxed according to a "hypothetical" nondiscriminatory scheme does not in hindsight avoid the unlawful deprivation: It still in fact treats petitioner worse than distributors using the favored local products, thereby perpetuating the Commerce Clause violation during the contested tax period. Respondents are therefore correct that petitioner's "claim for a refund thus asks for much more than prompt injunctive relief would have achieved" 26 only in the narrow sense that petitioner's absolute tax burden might be lower after the refund than if the tax preferences had immediately been enjoined such that all distributors were taxed at the higher rates. However, only an actual refund (or other retroactive adjustment of the tax burdens borne by petitioner and/or its favored competitors during the contested tax period) can bring about the nondiscrimination that "prompt injunctive relief would have achieved." If, through the State's own choice of relief, petitioner ends up paying a smaller tax than it would have paid if the State initially had imposed the highest rate on everyone, petitioner would not enjoy an unpalatable “windfall.” Rather, petitioner would merely be protected from the comparative economic disadvantage proscribed by the Commerce Clause. Hence, the State's duty under the Due Process Clause to provide a "clear and certain remedy" requires it to ensure that the tax as actually imposed on petitioner and its competitors during the contested tax period does not deprive petitioner of tax moneys in a manner that discriminates against interstate commerce.27

26 Brief for Respondents on Rearg. 15.

27 Respondents also assert that no refund is appropriate because petitioner most likely would pay the same amount of tax even if the preferred sliding scale tax schedules were retroactively extended to petitioner. As explained earlier, see n. 2, supra, the tax rate on preferred products under the Liquor Tax varies with the total volume of such products sold. Respondents suggest that, were the sliding scale schedule applied to petitioner, then "the gallons of alcoholic beverages sold by petitioner (and the

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The Florida Supreme Court cites two "equitable considerations" as grounds for providing petitioner only prospective relief, but neither is sufficient to override the constitutional requirement that Florida provide retrospective relief as part of its postdeprivation procedure. The Florida court first mentions that “the tax preference scheme [was] implemented by the [Division of Alcoholic Beverages and Tobacco] in good faith reliance on a presumptively valid statute." 524 So. 2d, at 1010. This observation bespeaks a concern that a State's obligation to provide refunds for what later turns out to be an unconstitutional tax would undermine the State's ability to engage in sound fiscal planning. However, leaving aside the

other distributors who previously paid the generally-applicable tax) [would have to be] included in the calculation" of the appropriate tax rate. Brief for Respondents 28. Cf. Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 719-720, n. 36 (1978) (suggesting that it would be within district court's equitable discretion, when devising remedy for Title VII violation arising from sex-based determination of insurance premiums, to determine appropriate relief based on recalculation of the premium required for an actuarially sound and nondiscriminatory insurance plan). Were the total volume of all sales included in the rate calculation, "it is virtually certain that the maximum rates under the scales would routinely apply. . . . It appears highly likely, therefore, that petitioner would owe the same amount of tax." Brief for Respondents 28.

We agree with respondents that the State might remedy the invalidity of petitioner's deprivation by extending to petitioner the sliding scale schedule in a nondiscriminatory fashion-but respondents' proposal would appear not to accomplish this result. If, as proposed, the State were to calculate the tax rate applicable to petitioner based on the total volume of sales of both preferred and nonpreferred goods, but leave untouched the taxes actually collected from the favored distributors based on the volume of sales of only preferred goods, the resulting tax scheme would itself raise questions under the Commerce Clause due to the State's use of a different "volume" variable for the preferred and nonpreferred goods in a manner that clearly disadvantages the latter. In order to cure the illegality of the tax as originally imposed, the State must ultimately collect a tax for the contested tax period that in no respect impermissibly discriminates against interstate commerce.

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fact that the State might avoid any such disruption by choosing (consistent with constitutional limitations) to collect back taxes from favored distributors rather than to offer refunds, we do not find this concern weighty in these circumstances. A State's freedom to impose various procedural requirements on actions for postdeprivation relief sufficiently meets this concern with respect to future cases. The State might, for example, provide by statute that refunds will be available only to those taxpayers paying under protest or providing some other timely notice of complaint; execute any refunds on a reasonable installment basis; enforce relatively short statutes of limitations applicable to such actions; 28 refrain from collecting taxes pursuant to a scheme that has been declared invalid by a court or other competent tribunal pending further review of such declaration on appeal; and/or place challenged tax payments into an escrow account or employ other accounting devices such that the State can predict with greater accuracy the availability of undisputed treasury funds. The State's ability in the future to invoke such procedural protections suffices to secure the State's interest in stable fiscal planning when weighed against its constitutional obligation to provide relief for an unlawful tax.

And in the present case, Florida's failure to avail itself of certain of these methods of self-protection weakens any "equitable" justification for avoiding its constitutional obligation to provide relief.29 Moreover, even were we to assume that

28 See Ward v. Love County Board of Comm'rs, 253 U. S., at 25 (recognizing refund claim could be barred if there was "any valid local [limitations] law in force when the claim was filed"); see also Fla. Stat. § 215.26(2) (1989) (generally applicable 3-year limitations period for tax refund actions).

29 For example, even after the Florida trial court held that the Liquor Tax violated the Commerce Clause and enjoined the tax preferences for local products, the State did not join petitioner's motion to vacate the stay automatically imposed pending appeal, thus continuing the unconstitutional tax assessment for an extra 11 months. See n. 5, supra. The State also opposed the suggestion that it place into a separate escrow account the

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the State's reliance on a "presumptively valid statute” was a relevant consideration to Florida's obligation to provide relief for its unconstitutional deprivation of property, we would disagree with the Florida court's characterization of the Liquor Tax as such a statute. The Liquor Tax reflected only cosmetic changes from the prior version of the tax scheme that itself was virtually identical to the Hawaii scheme invalidated in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984). See App. 263 (trial court held that the revised "legislation failed to surmount the constitutional violations addressed in Bacchus [Imports]"). The State can hardly claim surprise at the Florida courts' invalidation of the scheme.

The Florida Supreme Court also speculated that “if given a refund, [petitioner] would in all probability receive a windfall, since the cost of the tax has likely been passed on to [its] customers." 524 So. 2d, at 1010. The court's premise seems to be that the State, faced with an obligation to cure its discrimination during the contested tax period and choosing to meet that obligation through a refund, could legitimately choose to avoid generating a "windfall" for petitioner by refunding only that portion of the tax payment not "passed on" to customers (or even suppliers). Even were we to accept this premise, the State could not refuse to provide a refund based on sheer speculation that a "pass-on" occurred.30

discriminatory portion of taxes collected during this period of time, on the ground that "[t]here is a statutory mechanism in place . . . allowing for refunds." App. 286.

30 The state trial court, after ruling favorably upon petitioner's motions for a preliminary injunction and partial summary judgment based on its holding that the Liquor Tax violated the Commerce Clause, ruled sua sponte that its judgment would have only prospective effect, and this ruling was upheld on direct appeal. At no time has any party had the opportunity to present evidence concerning the extent, if any, of petitioner's ability to pass on the economic burden of the excise tax to its consumers or suppliers. The Florida Supreme Court's statement that the tax "has likely been passed on" by petitioner therefore is purely speculative.

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We repeatedly have recognized that determining whether a particular business cost has in fact been passed on to customers or suppliers entails a highly sophisticated theoretical and factual inquiry; a court certainly cannot withhold part of a refund otherwise required to rectify an unconstitutional deprivation without first satisfactorily engaging in this inquiry.31

In any event, however, we reject respondents' premise that "equitable considerations" justify a State's attempt to avoid bestowing this so-called "windfall" when redressing a tax that is unconstitutional because discriminatory. In United States v. Jefferson Electric Mfg. Co., 291 U. S. 386 (1934), we enforced a statutorily created pass-on defense in a refund action designed to redress a tax overassessment. Comparing such an action to one in assumpsit for "money had and received," we affirmed the Federal Government's power in this equitable action to withhold the amount that the taxpayer had already passed on to others, on the theory that the taxpayer ought not be "unjustly enriched" by his recovery from the Government after he has already "recovered" his losses through the pass-on. We observed that if the taxpayer "has shifted the [economic] burden [of the tax] to the purchasers, they and not he have been the actual sufferers

31 We have expressed particular concern about the theoretical, factual, and practical difficulties in engaging in satisfactory "pass-on" analysis in the context of antitrust doctrine. See Illinois Brick Co. v. Illinois, 431 U. S. 720, 741-745 (1977); Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 492-493 (1968). See generally A. Atkinson & J. Stiglitz, Lectures on Public Economics 160-226 (1980); R. Musgrave & P. Musgrave, Public Finance In Theory and Practice 256-300 (3d ed. 1980); McLure, Incidence Analysis and the Supreme Court: Examination of Four Cases from the 1980 Term, 1 Sup. Ct. Econ. Rev. 69 (1982); D. Phares, Who Pays State and Local Taxes? (1980). For this reason, we have observed that determining whether a particular business cost has been passed on "would often require additional long and complicated proceedings involving massive evidence and complicated theories." Hanover Shoe, supra, at 493.

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