346
Opinion of the Court
v. Hunt, supra, at 342-343; Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978).10 Hence, while cases like Kidd and Darnell may still be authorities under the Equal Protection Clause, they are no longer good law under the Commerce Clause. Cf. Associated Industries of Mo. v. Lohman, 511 U. S., at 652 (holding that, although a prior case applied a more lenient equal protection analysis to a Commerce Clause challenge, it had been "bypassed by later decisions"). North Carolina's intangibles tax cannot pass muster under modern compensatory tax cases, and Darnell cannot save it.
V
North Carolina's intangibles tax facially discriminates against interstate commerce, it fails justification as a valid compensatory tax, and, accordingly, it cannot stand. At the same time, of course, it is true that "a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination." McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 39-40 (1990). In McKesson, for example, we said that a State might refund the additional taxes imposed upon the victims of its discrimination or, to the extent consistent with other constitutional provisions (notably due process), retroactively impose equal burdens on the tax's former beneficiaries. A State may also combine these two approaches. Ibid. These options are available because the Constitution requires only that "the resultant tax actually assessed during the contested tax
10 Cf., e. g., Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 528 (1959) ("[I]t has long been settled that a [tax] classification, though discriminatory, is not . . . violative of the Equal Protection Clause . . . if any state of facts reasonably can be conceived that would sustain it"). One commentator has observed that, "[b]ecause the states enjoy extremely broad leeway under the equal protection clause in drawing lines for tax purposes, they normally have no need to defend a discriminatory tax classification on the ground that a 'complementary' levy is imposed on other taxpayers." Hellerstein, 39 Tax Lawyer, at 428 (footnote omitted).
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